Manor Care Inc. v. Tom Douglas

hold- Court and our Supreme States United

ing today, rights of neither state will

impaired impeded the circuit court’s' on the merits Lowes’ claims.11

decision

IV.

CONCLUSION February order of circuit court’s

2013, dismissing the Lowes’ counterclaim and

third-party complaint is case reversed. The proceedings

is remanded for further consis- opinion. with

tent

Reversed and Remanded. INC.; CARE,

MANOR HCR Manor Care

Services, Inc.; Health Care and Retire Corporation America, LLC;

ment LLC; Employment Services,

Heartland Through 10;

John Does 1 and Unidenti (As Through

fied Entities 1 Heart Charleston), Below,

land of Defendants

Petitioners, DOUGLAS, Individually,

Tom Be On Dorothy Douglas,

half of the Estate Below, Respondents.

Plaintiffs

No. 13-0470.

Supreme Appeals Court Virginia.

West March

Submitted 2014.

Decided June join appeal diction and that the Lowes failed to indis- 11. We to make clear in this we wish pensable parties. Insofar as we have found have considered the merits Lowes’ jurisdiction subject circuit dispensable matter in- court’s Rather, of the merits of claims. determination error, rulings parties were sum- we claims is for resolution on Lowes’ reserved marily third reverse the basis for the circuit remand. i.e„ claims, court's fail- decision to dismiss the ure to state a claim for relief. Baute, Jr., Alyssa E. Hurney, J.

Thomas Charleston, WV, PLLC, Attor- Kelly Jackson Curiae, Virginia neys for Amici West Virginia and The Hospital Association West Association. Health Care Fuller, Jr., McHugh, B. Michael J. James Chaffin, Amy Quezon, A. Lance Bryant J. D. LLC,

Reins, Group, McHugh Fuller Law Farrell, Jr., MS, Hattiesburgh, Paul T. Tweel, Greene, Ketehum, Bailey, Farrell & WV, Respon- Attorneys for the Huntington, dents.

Anthony Majestro, Majestro, Powell & J. WV, PLLC, Charleston, Attorney for Amicus Curiae, Virginia Association Justice. West DAVIS, Chief Justice: corporate enti- action several This Nursing operate Heartland Home ties who (hereinafter Charleston, collec- West Companies”),1 “MC in- tively referred to as negligence; claims of violations volves Act, Virginia Nursing Home W. Va. West fidu- seq.; § et and breach of Code 16-5C-1 injuries to and the ciary duty, arising from Douglas, Dorothy of Ms. who had been death Nursing of Heartland Home. MC a resident denial of Companies appeal the circuit court’s Judgment as a Matter of their “Motion Trial, Law, a New or in the Aternative for for Remittitur” in the Further Aterative (hereinafter judgment a mat- “motion for law”), following jury trial entered ter of in an award of million $11.5 that resulted damages and million in $80 damages. Companies MC raise sev- .(1) disregarded form eral errors: verdict corporate distinct forms of the defen- dants; improperly al- the verdict form damages to non- to award lowed finding court erred in parties; the circuit (here- Liability Act the Medical Professional “MPLA”) provide did not the exclu- inafter negligence remedy the- asserted sive claims; (4) in conclud- the circuit court erred (hereinafter Nursing Home Act ing that the “NHA”) MPLA; governed by the claim is not (5) allowing a court erred in the circuit history Se& Sec- companies procedural of this action. are identified and de- 1. The various infra tion I. in recitation of the factual and scribed below our fiduciary duty against dementia, claim a nurs- she suffered from Alzheimer’s breach Par- home; (6) Disease, issues, health ing and kinson’s and other she nevertheless, was, improper excessive. con- award was and We able to walk with the use clude, walker, on upon based the briefs submitted recognize of a able to and communi- law, and appeal, arguments, well-nourished, oral relevant family, cate with her and (1) Companies that: MC waived the issue well-hydrated. spending After days nineteen disregarded Home, the' whether verdict form in Nursing Douglas Heartland Ms. defendants; corporate distinct forms malnourished, dehydrated, had become bed (2) verdict not allow ridden, form did addition, barely responsive. and non-parties; award times, fallen she had numerous sustained remedy provide MPLA did not the exclusive bruises, head and trauma and suffered from claims; (4) negligence asserted be- for the in mouth required sores her and throat that portion the NHA cause verdict form scraping away tissue and dead debris. fatally vague, claim and was is dismissed Following nineteen-day stay her at Heart- accompanying million award is va- $1.5 Home, Nursing Douglas land Ms. was trans- cated; (5) because the circuit court erred nursing facility, ferred to another then to fiduciary recognizing duty a breach of claim Huntington Hospital,3 ultimately Cabell and home, nursing claim is dis- to a care Hospice facility passed where she accompanying and missed million $5 days away eighteen leaving after Heartland vacated; punitive damages Nursing According Home. to her treating proportionate award is reduced to the reduc- physician Huntington Hospital, at Cabell Ms. compensatory damages, tion in and the re- Douglas dehydra- died as a result of severe punitive damages, amount of duced which tion. million, equals approximately passes con- $32 presented Evidence at trial demonstrated upon muster. stitutional Based these conclu- Nursing Home had Heartland been affirm, sions, reverse, we part; part; chronically There understaffed. had been and remand this action the circuit court complaints numerous from residents and proceedings for further consistent with this families, their as well as Heartland Nurs- opinion.2 ing employees. employee one Home At least understaffing complained repri- who was I. complaint, her complaint manded for and the FACTUAL AND PROCEDURAL apparently was removed from Heartland HISTORY Nursing Additionally, Home records. September Douglas Dorothy notwithstanding attempts On conceal the un- (hereinafter Douglas”) derstaffing, surveys by Virginia “Ms. was admitted to the West Charleston, Nursing Department Heartland Home Health and Human Services Virginia. Although Nursing Douglas West Ms. was Heartland Home’s un- documented eighty-seven years at her derstaffing improper pertaining old the time of records Home, Nursing prior Douglas’ to Ms. admission Heartland to staff that occurred appearance largely acknowledges hydration, unrespon- 2. This Court but she remained following Virginia Amici The West Hos- temporarily, Curiae: use of an or a sive. The NG tube Virginia pital Association and The West Health permanently, more to administer PEG tube nour- Association, joint sup- Care who filed a brief in Douglas Ms. discussed with her ishment to was port Companies; of MC and the West family. family did believe these treat- Justice, sup- who filed a Association brief in want; Douglas something ments were Ms. would port Douglas. express apprecia- of Mr. We our therefore, they procedures. Ac- declined these Curiae, participation for the tion these Amici cording testifying physician, an NG tube is positions we have their considered in our nasogastric goes through tube down decision of this case. only nose the stomach. can be used into It pas- temporarily because it will cause nasal record, According Douglas when Ms. sage percutaneous A PEG is a erode. tube Huntington Hospital, wab admitted to Cabell she through endogastric goes tube which the abdom- suffering dehydration from severe and was inal wall into the stomach. totally unresponsive. was IV She administered fluids, which her to a normal of restored level Nevertheless, judgment for Companies then filed a motion facility. to that admission law, under- Nursing remained matter of the circuit court Home as a which Heartland and, result, Douglas did not as a Ms. appeal staffed denied. This followed. stay her there. the adverse effects of

survive son, Douglas, individual- Douglas’ Tom Ms. II. his mother ly of the estate of and on behalf (hereinafter Douglas”), filed suit “Mr. STANDARD OF REVIEW various ing land land: health care facilities such management for Heartland owned HCR Manor the stock Services, Retirement Corporation of and apparently also held the Care, Inc., homes hospice Employment Manor skilled corporate entities Inc.; of the other named is it owned.7 Heartland facilities6; Corporation of Care, Inc.; company.5 Nursing Care a Health Care and nursing America, holding company Services, LLC. Manor Services, Home facilities LLC; HCR operating Health related to Heart- as assisted corporate America, LLC, and other nurs- Inc., Manor Care businesses.4 and Heart- Retirement and other Care and Employ- was licenses entity living owns judgment pellate standard of they pertain. rors ment as a matter of law to Rule ing guided Civil Procedure dards court’s denial connection I, Fredeking or in of review some issues denying support 50(b) MC (2009). Moreover, as a with the Companies of of following principles: matter of a renewed for of their Generally, their ^[1998] the West Tyler, review for an order particular post-verdict is de appeal allege numerous er after trial law. motion for Virginia however, novo.” issues from Specific motion set pursuant “The Rules of we are Syl. pt. a grant which out in judg stan trial ap for Services, LLC.,8 workers, employed trial ment reviews a court’s [w]hen Court regional di- including administrators and granting denying a renewed mo- order rectors, then to Health Care who were leased judgment for as a matter law after tion America, Corporation of 50(b) and Retirement under of the West trial Rule LLC.9 [1998], Rules Civil Procedure it is to review the facts to the task this Court Douglas asserted causes of action in- Mr. have determine how it would ruled on MPLA,10 negligence cluding under the viola- Instead, presented. its is to evidence task NHA,11 alleged breach of tions of the evidence was such determine whether fiduciary duty, corporate negligence. and might a trier of fact have reasonable trial, Following ten-day jury returned Thus, the decision below. when reached Douglas in favor of Mr. in the amount verdict considering ruling renewed motion damages12 on a in million $11.5 trial, punitive damages. judgment matter of law after and million MC for as a $80 Services, LLC, Vice-President, Employment Kathryn Hoops, is a 4. Director 8. Heartland also S. Tax, Audit, Care, Management subsidiary Risk of Manor Inc. Internal for Services, Inc., HCR Manor Care testified de- Care, Inc., position that Manor owed con- Only companies employees: had 9. two of these trolled its subsidiaries. LLC, Services, Employment and HCR Heartland Services, Manor Care Inc. Services, Inc., subsidiary 5. HCR Manor Care Care, of Manor Inc. seq. § See W. Va.Code 55-7B-1 et 10. Corporation 6. Health Care and Retirement seq. § 11. See W. Va.Code 16-5C-1 et itself, America, LLC, employees, had but no employees Employ- its leased from Heartland Services, 12.Specifically, $1.5 awarded million for ment LLC. injuries resulting to Ms. violations NHA negligence resulting summary Douglas, $5 Companies’ judg- million for In MC motion for ment, death, Douglas' which which Ms. described Health Care Retire- 80% America, LLC, designated ordinary negligence and Corporation ment as "the li- 20% negligence, nursing operates $5 million for breach of operator home medical censed duty resulting injuries Doug- fiduciary facility,” "a Ms. Heartland of Charleston and as sub- Care, sidiary of Manor las. Inc.” light the evidence must be viewed in the regarding decision a verdict Syl. pt. form.” 4, nonmoving party. most favorable to the Co., Perrine v. E.I. du Pont de Nemours & 482, (2010). 225 W.Va. 694 S.E.2d 815 Like 2, Syl. pt. respect id. With to the circuit wise, rule, general “[a]s a trial court has trial, ruling court’s on a motion for a new out- considerable discretion determining general standard of review thusly: is stated give special whether to interrog verdicts and reviewing challenges findings jury atories to a unless it is mandated to do court, rulings made a circuit apply we 8, so statute.” Syl. pt. v. Sun Barefoot two-pronged deferential standard of re- Home, dale Nursing 193 W.Va. rulings view. We review the of the circuit (1995). 5.E.2d 152 concerning court a new trial and its conclu- “[T]he criterion determining whether sion as to the existence of reversible error the discretion is abused is whether the standard, under an abuse discretion form, verdict together with instruction we review the underlying circuit court’s it, relating jury allows the to render a findings clearly factual under a erroneous verdict on' the issues framed consistent Questions subject standard. of law are law, with evidence, with the and with a de novo review. jury’s own convictions. See 9A Vance, Syl. pt. State v. 207 W.Va. Miller, Wright Charles Allan & Arthur R. (2000). S.E.2d 484 Federal Practice and Procedure: Civil 2d appropriate With consideration for these (1995); § 2508 Martin v. States Utili Gulf standards, we will address the issues herein Co., (5th Cir.1965); ties 344 F.2d 34 raised. Timmerman, McDonnell v. 269 F.2d 54 (8th Cir.1959).” III. Ctr., Inc., Williams Charleston Area Med. (2003) 215 W.Va. 592 S.E.2d DISCUSSION Foster, (quoting Adkins v. Companies MC have raised numerous is- (1995) curiam)). (per form, involving sues applica- verdict Separate Determination of Pu action, tion of the MPLA to this applica- Damages. Court, nitive Before this MC case, tion of the NHA to this whether the Companies assert that the verdict form dis fiduciary claim for breach of duty recog- regarded they the fact that are distinct cor Virginia, nized propriety West and the porate deprived entities and right each of its punitive damages awarded. We address separate determination of dam each of these issues in turn. ages. They complain this action was A. Verdict Form brought against separate corporations four We two address errors asserted MC corporate with individual identities and re Companies related to the verdict form: sponsibilities, yet improper the verdict form that it deprived them of individual determi- ly i.e., lumped unit, single them into a “the punitive damages nations of that it defendants,” against jury whom the enabled the to award to non- asked to assess-punitive damages. MC Com parties.13 Discussion of each of these as- panies they concede that corpora related signed errors separately is set out after a tions, but they separate claim that remain general statement of the standard for our entities. review of these issues. that, Douglas responds Mr. while MC 1. Standard of Review. “Gener Companies object they did improp- were ally, apply this Court will erly abuse of discre grouped together determining tion standard reviewing when subject trial court’s whether would be Companies argued III.C, 13. MC also have that the ver- issue. See Section which dismisses infra duplicative damages. dict form allowed claim, Because Douglas' Nursing Mr. Home Act and Sec- ap- our resolution of other issues raised in this III.D, Douglas’ tion which dismisses Mr. claim peal results in the dismissal of two of the causes fiduciary duty. for breach of action, necessary it is not for us to-address this warranted, the circuit punitive damages were ultimately their re- they withdrew damages, waived ultimately this issue was court found separate determina- having a quest to avoid ruling upon MC addressing the same in any punitive damages when the amount of tion of motion for a directed additionally argues Companies’ post-trial that MC He awarded. by failing to no abuse of discretion issue verdict. find Companies waived the We informing jury ruling. that the circuit court’s proffer an instruction dam- liability and allocate it could determine “[wjhen recognized that Court has This separately. defendant as to each knowing and intentional been a there has resolving this issue of a known pertinent to abandonment relinquishment The facts Companies Douglas inquiry and MC as to Mr. and the right, are that there is no error jury verdict proposed their each submitted from the rule of law effect of a deviation During jury Syl. part, pt. the circuit court. form to need not be determined.” conference, Companies objected Miller, MC charge 459 S.E.2d W.Va. State form and proposed (1995). verdict Douglas’ Syl. pt. part, State v. to Mr. Accord question contain a requested that the form 520 S.E.2d Lightner, 205 W.Va. the defen- asking whether (1999). defendant that Similarly, for each we have stated enough to war- egregious object conduct was a dant’s to constitutes “[generally the failure However, Com- damages. MC punitive matter on right rant to raise the waiver of upon 87, 91, lines separate want panies Asbury, did not State v. W.Va. appeal.” curiam). the amount of jury could indicate (per which the See 415 S.E.2d Claims, for each defen- punitive damages assessed Inc. v. Hess Oil also AIG Domestic Instead, only Companies 145, 155, wanted Co., Inc., dant. MC 751 S.E.2d one jury (2013) (“While could insert upon admittedly line which the one does this Court aggregate amount representing arbitrary number court’s approve of the trial against all of punitive damages assessed jury instruc- of a finite number selection collectively. tions, imposi- the defendants not further address the we do limitation due to the the instructional tion of question ruled that if the The circuit court being objection an raised absence of conduct warranted of whether a defendant’s companies particular on this is- insurance separate- to be set out punitive was (footnote omitted)); White, 231 State v. sue.” defendant, corresponding then a ly as to each 668, 678 jury could state upon line which the curiam) (concluding petitioner’s fail- that (per damages to assessed punitive amount of object jury charge constituted waiv- ure to to required. was that defendant also er). Companies did not want Because MC separate amount jury potentially enter to Companies did ini Although MC individual punitive damages as to each tially object the verdict form on the to defendant, request their they withdrew require jury grounds that it did not jury specific make a determination have the decide, separately, whether each defendant’s damages were warranted punitive of whether punitive damages, warranted conduct individually. for each defendant objection learning after that their withdrew require correspond the circuit court would Accordingly, adopted court Mr. the circuit upon separate each defendant only ing one line for Douglas’ verdict form that contained jury could insert the amount the MC which the question asking jury whether granted against any punitive damage award an Companies’ collective conduct warranted MC and, particular defendant. Because in the event that award of objection, the cir affirmatively, Companies withdrew their question answered correctly determined that the issue jury insert cuit court question allowing the a second fact, by withdrawing waived. amount of had been figure representing one the total appear it that MC jury. objection, their would by the to be awarded error, pre Companies invited which further re- MC withdrew their Companies’ Because the merits of this appellate review of jury separate de- cludes quest to have the make a as to whether issue. termination each defendant ap- only party personal

“Invited error” is a cardinal rule real in interest range pellate to a applied representative review wide Accordingly, the decedent. contend, conduct. It branch of the doctrine of is a Companies only proper MC party prevents waiver which from induc- plaintiff in this ease was the Estate of Doro- [ruling] ing inappropriate or erroneous thy Therefore, Douglas. circuit court seeking profit and then later from adopting erred in verdict form allowed ... error. The idea invited error is award damages Douglas’ Ms. protect underlying ju- principles notions children, Carolyn Douglas Douglas Tom and economy integrity by allocating dicial and Hoy. Companies MC the contrast verdict appropriate responsibility for the induce- jury instructions, form to the which stated error, Having ment of error. induced an Estate the was to all of receive the party may case later a normal not at a damages. stage of use the error aside the trial to set Douglas disagrees Mr. Compa- with MC its consequences. immediate and adverse awarding wrongful nies’ assertion that death 627, Crabtree, 620, State v. 198 W.Va. 482 proceeds directly wrongful to the death bene- 605, (1996). 1, pt. S.E.2d Syl. 612 See also legally wrong. Douglas ficiaries was Mr. Commerce, Maples Virginia Dep’t v. West that, personal representa- submits while the (“A (1996) 318, 197 W.Va. 475 S.E.2d 410 wrongful tive of the deceased in a death suit litigant may silently acquiesce an not to al suit, bring personal representa- must the error, leged actively or contribute such to merely party tive is a nominal and recov- error, and then that error raise as a reason ery passes designated to the beneficiaries appeal.”); Tiffany for reversal on In re Ma wrongful death not statute and to the S., 223, 233, 177, rie 196 W.Va. 470 S.E.2d decedent’s estate. (1996) (“[W]eregularly 187 turn a ear to deaf error that invited the complaining conducting analysis Before our of this is- (citation omitted)); party.” Na Shamblin v. sue, briefly we review the relevant facts. Co., tionwide Mut. Ins. 183 W.Va. asking jury After to determine whether (1990) 766, ap 396 (finding “the negligence part there was on the of MC pellant cannot from the consequences benefit Companies that caused the death Ms. invited”). of error it Douglas portion negligence to and be- conclude, ordinary negligence To find the negli- we circuit did tween and medical finding gence,15 jury abuse its Com- discretion that MC the verdict form next asked the panies waived issue of ver- whether the to determine the amount of the as dict required jury form should have to follows:16

separately whether each assess defendant’s compensatory amount of dam- What conduct warranted award of dam- you pay must do find Defendants to ages.14 children, Douglas’ Dorothy Douglas Tom Carolyn Hoy, Douglas

3. Whether the verdict en A. form and their jury sorrow, abled anguish, to non- mental and solace which parties. Companies argue may society, companionship, MC that under include and statute, comfort, Virginia wrongful individually? the West death circumstances, ("Absent Companies additionally argue extenuating 14. MC the failure they improperly grouped Court that were object irregularity also timely to a defect or in the together jury’s on the form for the deter verdict jury when the the verdict verdict form returns damages, liability compensatory mination of and jury’s prior discharge, to the constitutes a requirement and that this defect violated the irregularity defect in the verdict waiver of the jury findings the MPLA that percentage to the make form.”). defen of fault attributable to each (2003) 55-7B-9(a)(5) § dant. See W. Va.Code ordinary negligence jury allocated 15. The 80% (Repl.Vol.2008). Companies Because MC failed negligence. medical 20% prior to raise these issues to the trial court jury returning discharged, being its verdict and 2, jury $5 Syl. 16. The awarded million in pt. also were waived. v. Combs Cf. Hahn, 102, damages. 205 W.Va. 516 S.E.2d 506 326, 332,475 S.E.2d Douglas Kennedy, 197W.Va. Carolyn A. Douglas and Tom Hawley, (quoting v. Trail Hoy $- (1979)). W.Va. Companies’ motion for denying MC that, Nevertheless, recognized we also have law, the circuit court as a matter of judgment case, personal wrongful death found party, merely a nominal representative is verdict form did not allow directly to any recovery passes non-par- damages to improperly award wrongful designated in the beneficiaries Douglas ties, Carolyn A. Douglas Tom statute, the decedent’s and not to death in interest party Hoy.... While real Syllabus McClure v. Point estate. representative the de- personal McClure, 403 S.E.2d 197 action, wrongful in a death ceased (1991). Hartman, See also Dunsmore the estate as damages are not awarded to 357, 361-62, 84 S.E.2d 139- directly by the but Defendants asserted (1954); Banking & v. Kanawha Peters beneficiaries the decedent. 484, 488, Co., 191 Trust 118 W.Va. S.E. upon decision the circuit court based its (1937). 581, 583 (1992) § 55-7-6 language of W. Va.Code agree and therefore (Repl.Vol.2008). We at Kennedy, v. 197 W.Va. Richardson find no error. v. at 424. See also Ellis Swisher 55-7-6(a) states, Swisher, § in relevant Code ex rel. W.Va. W.Va. (2013) curiam) (per

part, that S.E.2d have been de- («[Wjrongful death recoveries [ejvery wrongful [for death] such action benefit a solely to exist for the termined brought by in the name of be and the shall beneficiaries.”); Bradshaw v. decedent’s representative personal of such deceased Soulsby, 210 in duly appointed person who has been (“The essential, purpose beneficial state, State,' territory any or or in other compensate wrongful is ‘to of the death act States, in any or district of the United they have loss suf- the beneficiaries for the country, foreign and the amount recovered ”); as a result the decedent’s death.’ fered every by be recovered in such action shall Syl. pt. part, Thompson Lively in & representative and be personal dis- said Mann, S.E. 920 in tributed accordance herewith. by an (“Money recovered in an action admin- addition, portion of W. Va. In the relevant causing ... for the death of his istrator 55-7-6(b) every § that such “[i]n Code states default, act, by neglect, or wrongful decedent death, wrongful jury may ... the action general not constitute assets the es- does may seem fair such as to it the hands of of such decedent in the tate and, propor- just, may in what and direct administrator be administered.... Such distributed to the tions the shall be money belongs particular persons who the children_” surviving (Emphasis ... add- (emphasis add- by law are entitled thereto.” ed). ed)). language, light foregoing of the “by that, brought properly This case was and observed cannot be “‘[i]t Court has Douglas’] personal repre- [Ms. action ... the name of questioned wrongful that a death § required by by representa- as W. Va.Code 55- brought personal sentative” must ” 7-6(b).17 Thus, representative personal Richardson v. tive of a decedent’s estate.’ by by any anything court or Companies additionally complain done or omitted MC ground granting parties a new failing trial erred to dismiss Tom circuit court Douglas setting vacating, plaintiff capacity. aside a verdict or for individual or for as in his disturbing judgment modifying Douglas brought or Mr. this suit in otherwise Insofar as also order, Douglas’ appears capacity representative action unless refusal to take such his as the of Ms. 7—6(b), justice. required by § court with substantial as Va.Code inconsistent estate W. 55— every stage proceeding being resulting The court at must we find error from him also proceeding disregard any defect capacity in his was harmless. error or named individual rights (stating, part, which does not affect the substantial See W. Va. R. Civ. P. 61 "no Inc., Transp., Lacy any ruling parties.”). See v. CSX or defect in or order or in also error party malpractice should have been the named on the by can be plaintiff, asserted Nevertheless, and applies verdict form. as the MPLA only portion this Court clear, monetary damages has made by verdict determined jury to by jury belong arise out of health Douglas’ awarded to Ms. care pro- services vided provider. health care Accordingly, Doug- beneficiaries. Mr. naming while the pled las asserts that he malpractice medical Douglas’ of Ms. beneficiaries on the verdict corporate and negligence presented error, and evi- form was in we find the error to be dence on both theories. The then deter- merely acknowledged harmless in that it percentage mined what negligence was monetary recovery ultimately pass would related to health care per- services and what children, Douglas’ Douglas Ms. Tom centage was not. As to the non-medical cor- Carolyn Douglas Hoy. A. defendants, porate Mr. Douglas asserts that B. MPLA he alleged direct liability for the decisions Companies argue MC that the trial they made impact that had a direct on the failing court erred in to hold that the MPLA harm Douglas. suffered Ms. Douglas Mr. provided remedy plain exclusive for the proceed insists that he did not against any of tiffs’ claims They defendants. corporate defendants on the basis of contend designed by that the MPLA was liability. vicarious He submits that there Legislature broadly apply specifically ample trial, presented evidence at malpractice to limit concerning claims nurs specific findings court, made the trial homes, ing Legislature and that the has rec decisions, to how non-healthcare such as bud- ognized that the can pur MPLA achieve this constraints, staff, getary lack of poor pose only completely if occupies the-statute management facility, affected all of the malpractice the field of MC Compa residents, claims. including Douglas. Ms. Douglas’ nies assert that all of Mr. claims fall begin analysis We our with the rec within the broad pro definition of “medical ognition governs the MPLA “medical liability” fessional they because are all based professional liability”18 against actions upon “health care services” that were “ren provider[s]”19 “health provides care dered, or which should have been rendered.” See, remedy exclusive for e.g., such actions. 55-7B-2(I) (2006) § W. Va.Code (Repl.Vol. . 55-7B-6(a) (2003) § (Repl.Vol. W. Va.Code 2008) 55-7B-2(e) § See also W. Va.Code 2008) (stating, in part, relevant per that “no (defining “any “Health care” as act or treat may son professional liability file a medical furnished, performed ment or or which against any action provider health care with furnished, performed should have been or complying provisions out with the of this for, any provider health care to or on behalf section”). Notably, previously this Court has care, patient during of a patient’s medical considered the exclusiveness of the MPLA confinement”). treatment or We first Boggs addressed this issue in v. Douglas responds Mr. that causes of action Hospital Camden-Clark Corp., Memorial ordinary negligence for both (2004), and medical 609 S.E.2d 917 W.Va. where 630, 643-44, 205 W.Va. 520 S.E.2d provider” 431-32 19. The MPLA defines "Health care as (1999) ("Under party W. Va. R. ‘[a] Civ. P. 61 person, partnership, corporation, profession- a only entitled to a new trial if there is a reason- liability company, facility al limited health care probability jury’s able that the verdict was affect- in, by, or institution licensed or certified ed or influenced trial error.’ Tennant v. Mar- state, provide state or another health care or Found., Inc., ion Health Care 194 W.Va. services, professional including, health care (1995).” (footnote omitted)). 459 S.E.2d to, physician, osteopathic but not limited a dentist, physician, hospital, registered or li- professional 18. The MPLA defines "Medical lia- nurse, practical optometrist, podiatrist, censed bility” "any liability damages resulting for chiropractor, physical therapist, psychologist, injury person any from the death or of a tort emergency agen- authority medical or services or breach of contract based on health care ser- rendered, officer, cy, employee agent vices or an or which should or thereof have been ren- dered, by acting cer's, provider scope a health care or in the course and health care of such offi- facility patient.” 55-7B-2(I) employee's agent’s § employment. to a W. Va.Code or (2006) (Repl.Vol.2008). § 55-7B-2(g). W. Va.Code Legislature has The lia- to such claims. alleged professional medical plaintiff pro- special protection claims to medical alleged granted non-medical bility and also cover-up fessionals, of medical acting as such. related to an asserted while Boggs Court concluded inten- protection does not extend to negligence. This liability claims only professional scope medical acts outside the tional torts or and held that subject the MPLA were If for some reason “health care services.” intentionally a nurse assaulted a doctor or Professional Virginia Medical West [t]he possessions, their or defamed patient, stole § Act, 55- at W. Va.Code Liability codified them, require appli- actions would not such only to claims result- seq., applies 7B-1 et if the any MPLA more than injury person cation of the or ing the death from tort, out- on nurse committed such acts of contract based doctor or or breach Moreover, rendered, or which care context. side of the health care services health rendered, by a health been of the MPLA to non-medical application should have facility to a logistical health care provider malpractice care or claims would be apply to other claims physician It does not patient. reputable No impossibility. contemporaneous to or related may be sign certificate of merit for a claim would professional medical alleged battery; act of larceny how could of fraud or or liability. meaningful? helpful be such a certificate 3, Boggs, Syl. pt. 662-63, S.E.2d at Boggs, 216 at W.Va. Boggs were that Ms. 917. The facts in Thus, Boggs proposi- for the stands 923-24. decedent, entered the plaintiffs Boggs, the may brought tion that some claims that Following surgery. hospital for ankle simply do not against provider care health prep- spinal administration anesthetic in of a and, therefore, involve health care services surgery, suffered a cardi- aration for the she subject to the MPLA. This Court has are not days later. The ac and died several arrest conclusion. not deviated from this alleging filed suit administrator of her estate Following Boggs, this Court de anesthesiologist failed to adhere that the Mena, Gray cided as- Claims were also the standard of care. (2005). Gray, ex the Court anesthesiology group and serted language in the pressed concern that certain hiring negligent hospital on theories of might Boggs opinion be misconstrued retention, liability. Finally, and vicarious that no intentional acts would fall with mean estate], [ajecording Boggs’ follow- [Ms. To foreclose such a misinter in the MPLA. Boggs, parties several ing the death of Ms. Boggs, Gray Court held that pretation of cover-up, led Mr. engaged in a which opinion Boggs in v. Cam Court’s [t]his fraud, Boggs to additional claims for assert Hospital Corp., 216 Memorial dem-Clark records, the tort of out- the destruction of (2004), 656, is clari 609 S.E.2d 917 W.Va. Mr. rage, spoliation and the of evidence. Virginia by recognizing that the West fied should Boggs maintains that these claims profes medical Legislature’s definition of separate and be considered to be distinct Virginia liability, found in West sional malpractice from his medical claims. 55-7B-2(I) (2003) (Supp.2005), § in Code 659, Boggs, S.E.2d at 920. 216 W.Va. at 609 liability damages resulting from cludes for Sylla- reaching holding announced in any injury person of a for tort the death or point opinion, the Court rea- bus 3 of the services rendered upon health care based soned that To have been rendered. or which should evidence, [f]raud, spoliation negli- or otherwise, Boggs suggested the extent that gent hiring are no more related to “medi- it is modified. professional liability” “health care cal or 564, 4, Gray, 625 S.E.2d Syl. pt. 218 W.Va. battery, larceny, or libel. services” than Thus, change the Gray did not way apply MPLA 326.20 simply There is no plain- upon action based Factually, Gray dismissed the involved a claim that an as- court pre-suit require- comply with the during tiff's failure to sault had occurred the course of a medi- that, Court observed physician. of the MPLA. This The circuit ments cal examination

73 MPLA, interpretation Court’s first action is professional one for or simple Boggs, applies negligence.”); announced in that the MPLA Perkins v. Susan B. Allen only upon Hosp., 885, to actions “based Mem’l Kan.App.2d health care ser- 36 146 P.3d 1102, (2006) (“Not vices rendered or which 1107 should have been every claim for added). negligence (emphasis against rendered.” Id. See also provider healthcare 3, Syl. pt. part, Boggs, malpractice.”); in 216 constitutes Draper W.Va. v. Wes terfield, (stating (Tenn.2005) S.E.2d 917 “applies that the MPLA S.W.3d (“Cases only resulting involving health claims from the death or medical entities automatically do not injury person of a fall tort or within the breach of medical statute”). malpractice Thus, contract based on health care “when the services ren- complaint dered, rendered, allege does not negligence or which should have been furnishing medical patient, treatment to a provider health care or health care but rather the added)). provider failure of a facility patient” medical (emphasis to a In- in fulfilling deed, duty, a different the claim in negligence.” Saal, sounds Rodriguez v. correctly has been [i]t observed that 43 A.D.3d 841 N.Y.S.2d alleged “[t]he fact that the misconduct oc (2007). not, facility curs a healthcare does Riggs v. Inc., West Hosps., Univ. itself, make the claim malpractice. one for 646, 665-66, 91, 110-11 656 S.E.2d injured Nor does the party fact that the curiam) (per (Davis, C.J., concurr patient was a facility at the or of the ing).21 See also Mary’s R.K. v. St. Med. provider, create such a claim.” Madison Ctr., Inc., Ctr., R.R.K., Inc. v. 853 N.E.2d (concluding allegations that “the (Ind.Ct.App.2006). See also Atlanta Wom case, asserted in the pertain instant which Clemons, Group en’s Health 287 Ga. improper records, disclosure of medical App. (2007) (“Of 651 S.E.2d 762 [do] not fall within the MPLA’s definition of course, every not suit which calls into care,’ and, therefore, ‘health the MPLA does question the conduct of one happens who apply”). professional to be a medical is a medical malpractice action. must We look to the cautioned, however, We have substance of an action a medical manner which a claim pled is does not professional determining govern whether the ultimately whether the MPLA will be judice, good in the argument case sub faith [t]he facts in the instant case demonstrate that may be made that a claim of Riggs assault and bat- having at the time Ms. surgery, knee tery clearly a claim of an exposed intentional tort patients, WVUH possibly all of its which did not involve anyone entering health care hospital, services ren- potential dered or which should contracting have been rendered. a serrada bacterial infection. The Similarly, recognize good argu- we potential that a contracting faith a serratia bacterial in may alleged ment be made that because the Riggs fection not was the reason Ms. was admit batteiy assault hospital. Riggs sought occurred the course ted to the Ms. medical examination, Appel- right ostensible medical duty the treatment for her knee. The breached subject pre-suit lant’s claim require- by to the failing properly WVUH was not that of to knee, Riggs’ ments at issue. general treat Ms. WVUHbreached a Mena, Gray v. duty 218 patients nonpatients W.Va. 625 S.E.2d it owed to all to 326, (2005) (footnote omitted). Ultimately 330 Padney maintain a safe environment. See v. Me that, Ctr., 759, the Court particular concluded App.3d "under the troHealth Med. 145 Ohio 764 case, (2001) appears (allowing circumstances of this dismissal to N.E.2d 492 estate of deceased sanction,” disproportionately particu- be a hospital harsh bring worker to common law tort ac larly light against hospital theory hospital newness of the MPLA tions at that that .on Gray, time. employ 218 W.Va. adequate at failed prevent 625 S.E.2d at controls to Accordingly, 332. the Court remanded for rein- employees). transmission of tuberculosis to its statement duty by of the action and hospital to allow the defen- Breach of the to maintain a environment, request compliance dants to injury with the safe MPLA. which breach causes patient nonpatient, simply fall does not Riggs 21. was resolved in a manner that did not under the MPLA. require Inc., the Court to Riggs Virginia determine whether the Hosps., v. West Univ. subject W.Va. 646, 666, claims asserted were ever, to the MPLA. How- (per 656 S.E.2d concurring curiam) (Davis, C.J., opinion opined the concurring). that ease, implic- court This Court In the instant the circuit particular claim. has applied to a Douglas’ itly found that some of Mr. claims held that by governed MPLA while some were the governed plead claim as failure to [t]he by the were This determination circuit not. Act, Liability by Medical Professional the adoption by court’s is demonstrated the court 55-7B-1, seq., § does et Va.Code W. verdict form that allowed the of a Act. application of the Where the preclude negligence award between ordi- allocate its are com- alleged or omissions tortious acts negligence. negligence nary and medical provider a health within the mitted care Thus, is to determine this Court’s task rendering of “health care” context decision in the circuit court’s this whether 55-7B-2(e) § defined W. Va.Code find that it was. regard was correct. We regard- applies (Supp.2007), the Act Douglas that are not Mr. asserted claims pled. have been of how the claims less liability. professional In related medical Ethicon, Inc., Syl. pt. Blankenship v. words, they claims “based on other are not (2007). But see 656 S.E.2d 451 W.Va. rendered, care or which health services Inc., Hosps., Riggs v. West Univ. rendered, by a health have been care should 647-48, at at 92-93 221 W.Va. facility patient.” to a provider or health care judicial estoppel prevented (concluding that Syl. part, Boggs, pt. “pled, prosecuted who tried plaintiff regard, plaintiffs the S.E.2d hospital] claims defendant [the their upon alleged corporate negligence based subject provisions as claims budget to proper failure to allocate a Heart- theory changing of their from “the MPLA” Nursing land Home to allow it function jury’s verdict so as after the return of case maintaining adequate properly, including non-econom application avoid the MPLA’s residents. numbers of staff to care for its To Rather, Court damages cap”). has ic Douglas pre- support allegations, these Mr. recognized decision of whether twice that the nursing testimony sented the of certified as- applies presents claims the MPLA to certain (CNAs)22 practical and a licensed sistants query. Blankenship, a fact-driven See who had at Heartland and nurse worked (“[T]he 706, 656 at 457 de at nearly always facility was stated of whether the Medical Profes termination described understaffed. These witnesses Act, Liability § 55-7B-1 sional W. Va.Code as “horrible” and “unbearable” conditions is a seq., applies et to certain claims fact- the low of staff due to numbers available (footnote omitted)); question[.]” Gray driven nursing residents home. At care for Mena, S.E.2d at 332 218 W.Va. at one former testified least worker (“[W]here action allegedly offensive was only time there close to a sufficient was within of the render committed the context facility was when it amount of staff at the services, applies. ing of medical the [MPLA] inspected by being the State. There was Where, however, question the action was human relations testimony was also provision outside the realm of of medical Nursing during for Heartland Home director services, apply.”). does not We [MPLA] year 2009. that the CNA She stated clarified, however, express 112.3%, have and we now year rate for was turnover that, ly applicability hold “while by the CNAs primary given reason Act, Liability Va. [Medical Professional W. leaving their with Heartland employment upon § et seq.,] facility Code 55-7B-1 is based Nursing Home un- was that given case, facts of a determination of They complained being of also derstaffed. particular gov Requests underpaid. whether a of action is and for cause overworked by Nursing legal question erned to be staff at Heartland Home [Act] is additional by by oper- director of Blankenship, regional decided the trial court.” denied were Services, Employment at 706 n. at 457 n. for Heartland ations LLC. 12. sores, assisting typically provided patients to avoid and

22. CNAs the care related to bed daily living, hygiene, moving patients eating. personal such as with fit, and, Although understaffing problem rights was while some of these or bene- by requests salary MPLA, for in- may known virtue of fits fall under the others do not. creases, requests agency for use of additional He further nothing asserts that in the MPLA CNAs, survey by and a issued the West that it states controls to the all exclusion of Virginia Department of and Health Human other statutes that include claims other than presence Services that documented the of an Thus, malpractice medical claims. he rea- inadequate Nursing staff at Heartland Home certainly that sons some actions that occur there, prior Douglas’ to Ms. residence nursing within a home do not constitute not issue was resolved insofar as there was by “healthcare” as defined the MPLA. facility properly staff to insufficient at the We need by not reach this issue as framed Douglas stay. her during care for Ms. Final- Companies because there is a MC more fun- ly, Douglas presented that Mr. evidence con- problem damental with the award of dam- Home, Nursing trol of Heartland both as to ages for the NHA respect claim. With staffing, by and budget compa- was exercised NHA, the jury verdict form asked the qualify pro- did not health care nies that as following questions: example, Nursing For viders.23 Heartland. you proved by 1. Do find that Plaintiff budget ultimately presented Home’s was preponderance evidence that there Care, operating for the chief officer Manor deprivations were violations or of the West Inc., approval, Nursing for and Heartland Virginia Nursing part Home Act on the expected comply Home with the final substantially Defendants that contrib- budget.24 injury Dorothy Douglas? uted to decisions, Claims related to business such _Yes_No proper budgeting staffing, by entities and you proceed If answered “Yes” then qualify not that do as Health Care Providers 2_ Question No. simply the MPLA not under do fall within Therefore, statutory 2. that What is the scheme. amount as a provide did remedy MPLA the exclusive result of the Defendants’ violations or de- Douglas’ negligence privations Virginia Nursing for Mr. claims. of the West home Act? (NHA) Nursing The Act C. Home Companies

MC also assert that the added). (Italicized concluding court erred in emphasis circuit that The an- MPLA, one, by “yes” NHA is not limited question because swered number and applies $1,500,000.00 the MPLA causes of ques- all action awarded Therefore, on based health care services. number tion two. Companies, MC cap asserts MPLA The problem question fundamental with have applied

should been to this claim. injury one above is its use the word with Douglas the MPLA by Mr. contends that no indication of is meant what that word they provide judice.- the NHA can coexist because context of the case sub regard, exceedingly for different of this complex actions. In Mr. trial case was argues Douglas language multiple claims asserted. were addi- claim, purpose protect NHA indicates that its is to to this NHA claims tion were asserted injured nursing ordinary home residents negligence, negligence, as a for medical any deprivation right fiduciary purported result or bene- and a claim for breach of President, Thereafter, Kathryn Hoops, Employment Vice Director of Heartland Services. it Tax, Audit, Management Internal Risk approved was reviewed and the General Man- Services, designated HCR Manor Care who was ager and Vice-President the Mid-Atlantic Di- corporate testify each of the defendants on Employment vision of Heartland Services. Once behalf, Care, Inc., directly its stated that Manor budgets all the for the Mid-Atlantic Division owned and controlled its subsidiaries. reviewed, they were were rolled into a divisional operating budget approval was submitted for specifically, budget 24. More the Heartland first Care, operating to the chief officer for Manor Nursing was reviewed Administrator; the Heartland Home Inc. it then be reviewed had to by regional approved operations a director for million, claim, hereby va- Moreover, which was $1.5 were claims for there duty.25 care, cated. health related to that were damages unrelated damages that were for Duty and claims Fiduciary D. Breach of argument, it was During oral care. to health jury in this case awarded $5 The damages sought suggested that even Douglas that resulted harm to Ms. million for damages were this claim with connection fiduciary a Companies’ breach of from MC U.S., 213 W.Va. McDavid v. pursuant to motion Companies’ post-verdict duty. MC (2003).26 rais- This assertion sought of law judgment as a matter for McDavid insofar as confusion es additional reject cause of court have the circuit damages that element of damages are an motion, circuit denying their action. In wrong- with a in connection may be obtained opined court claim, violation of claim for a not a ful death fiduciary rela- were in a the Defendants Thus, upon our review of based the NHA. Dorothy Douglas and owed a tionship with form, vague of the use and the verdict According to the fiduciary duty to her. utterly unable to deter- “injury,” are term we (Second) § “one of Torts Restatement what, basis for exactly, $1.5 was the mine fiduciary relation with anoth- standing in a jury. Further- million dollar liability to the other for subject to er is more, provide do not jury instructions duty im- resulting from a breach harm similarly were clarification insofar as According posed the relation.” require the do not vague general, and and comments, fiduciary relationship “exists a identify spe'eifictype of harm Ms.

jury to a persons when one of them is between two i.e., jury to find that the asking the Douglas, duty give advice for under a to act for or Douglas’ pre-death suffer- Ms. award was for matters within upon of another the benefit death, Lively v. or both. ing, her actual Cf. scope relation.” Restatement of the Rufus, 207 W.Va. Further, (Second) § emt. a. a of Torts was (finding “the verdict form duty fiduciary a breach of his who commits the term fatally in that it utilized flawed person conduct to the guilty of tortious “is in ... was not defined ‘value’when that term act.” Id. at emt. b. whom he should for term ‘value’in the The instructions. one at bar could of a ease such as the context Dorothy Douglas Court finds that the book value of the be intended to refer to upon adult admission was a vulnerable corporation a value of the corporation, the facility position where Defendants’ and concern, market going or the accumulated Defen- depended on the she trusted and stock.”). outstanding corporate value of its fiduciary relationship such that a dants Thus, Defendants owed present. identify inability to Because of our Douglas. duty to Ms. award, NHA we purpose for the nature address, similarly Companies with contend appeal, are unable to On MC denying post- with their clarity, the issues raised connection the circuit court erred fact, judgment as a matter of the verdict form and verdict motion for the award. In fiduciary for breach of lacking lucidity, we find law as to the claim instructions are so no Companies argue that there is Douglas’ duty. MC only dismiss Mr. our recourse is to evidentiary support for breach portion legal or Accordingly, NHA claim. duty the facts of this fiduciary claim under to that attributed personal for fiduciary duty did not institute action claim is ad- dent 25. The breach of injury prior To award dam- below. See Section D. to his or her death. dressed infra suffering, evi- pain there must be U.S., Syllabus point McDavid v. 6 of suffering pain and conscious dence of (2003), this Court 584 S.E.2d 226 prior death is instan- death. Where decedent stated: taneous, evidence that the where there is no Va.Code, act, wrongful 55- death W. Under the consciously pain perceived and suffer- decedent [1992], may jury's include verdict 7-6 suffering pain al- ing, no suffering pain endured decedent’s for the lowed. death, injury and the time of between the time of injury death but the dece- where the resulted in

77 They suggest merely reposing may that there was no evi- confidence in another ease. not, itself, of duty relationship.” that defendant undertook a create dence 36A (1961). Fiduciary, p. C.J.S. 385 Douglas for the Ms. to act benefit of while Instead, subordinating its interests hers. Co., v. Elmore State Farm Mut. Auto. Ins. relationship a there was contractual that obli- 430, 436, 893, 504 S.E.2d 899 entities, one gated of its Health Care and (1998). America, LLC, Corp. pro- Retirement of previously This Court recognized has not a Douglas Ms. vide healthcare services to of duty cause action for of fiduciary breach payment for her those return services. words, a nursing home. In other we Companies urge reject MC this Court to Mr. nursing have not ruled that a home a owes adopt ground- Douglas’ invitation to new fiduciary duty to residents its or what the breaking law establishing nursing that homes parameters duty of such a would be. Based fiduciary duty provide adequate owe a upon particular of the facts instant mat- healthcare. ter, jurisdictions and the small number of recognized who have expressly such a cause Douglas responds Mr. that one must look action,27we Douglas’ of decline Mr. invitation relationship at the to determine whether a recognize such of a cause action at this fiduciary duty Additionally, exists. Mr. See, e.g., time. Harper Howard v. Estate Douglas urges that sufficient evidence was 854, (Miss. rel. Harper, ex 947 So.2d 861-62 presented support the existence of a fidu- 2006) (“ ‘If fiduciary the Court were to find a ciary duty and the defendants’ breach of the relationship between Plaintiff and [the nurs- same. ing administrators], home licensee and a then It is well that established reasonable inference could be made that each fiduciary duty duty is to act for “[t]he ‘[a] home], every employee nursing [the benefit, subordinating someone else’s while janitorial from the staff who cleaned Plain- personal that of one’s interests to the other tiff’s room to the chief executive officer who person. It highest duty is the standard of policies procedures established for [the ” implied by law v. [.]’ Elmore State Farm home], nursing fiduciary duty owed a Co., 430, 435, Auto. W.Va. Mut. Ins. 202 [nursing Plaintiff. The home licensee and (1998) (quoting 898 Black’s primarily responsible administrators] were ed.1990)). (6th Dictionary Law 625 home], management a nursing [the responsibility a typically that does not create 594, 598, Compton, v. Napier 210 558 W.Va. fiduciary duty.’” (quoting Gray v. Beverly curiam) (2001). (per 597 See also Enters.-Miss., Inc., F.Supp.2d 261 662- McKinley Lynch, 58 51 S.E. (S.D.Miss.2003), grounds, 63 rev’d on other (observing fiduciary a rela- (5th Cir.2004))). F.3d Accordingly, trust, tionship exists “whenever a continuous we conclude that the circuit court erred in temporary, specially reposed or is in the skill recognizing a action for cause of breach of another”). Furthermore, integrity home, fiduciary duty against nursing a that, explained has Court we dismiss this action. cause of rule, a'general fiduciary relation- “[a]s is ship only Douglas’ established when it is shown Because we Mr. dismiss claim for duty, reposed person fiduciary portion confidence one breach of other, actually accepted by attributed to that See, Ctrs.-East, Inc., e.g., Living special relationship independent Petre v. arose out of a (E.D.La.1996) ("While contract, same, F.Supp. breach and a it was fiduciary relationships [plaintiff’s Court concedes that are error for the trial court dismiss claim]”); dealings, fiduciary duty most often found in breach financial the Court Zaborowski v. Inc., relationship Hospitality Hermitage, can think no which better fits the D. Care Ctr. 60 Pa. (Pa.Com.Pl.2002) ("The description above than exists & C. that which between 4th 488-89 residents."); concedes, nursing argue, home and its court as defendants that fidu Greenfield Care, Inc., (Fla. ciary relationships v. Manor 705 So.2d most often found in finan however, Dist.Ct.App.1997) (concluding dealings; “[s]ince cial the court [the believes that plaintiff] properly alleged fiduciary duty nursing relationship be between home and its residents, nature.”). fiduciary tween Manor Care [sic] and it which residents can be million, claim, hereby gations affecting rights Syl. vacat- of others.” which was $5 Frobe, part, Mayer in pt. ed. (1895). MC Companies S.E. further Damages E. Punitive jury’s note that the circuit court allowed the damages jury punitive ver- returned Care, punitive damages award Manor million, which, above, noted as dict $80 Inc., permitted consideration Manor against all defendants collective-

was entered Care, Inc.’s, upon based the wealth court’s punitive damages represents ly. This award finding operated “all four that Defendants approximately 7:1 ratio28 to the $11.5 However, jointly.” nursing the home MC compensatory damages grants million award Companies assert the record does not that by jury.' the Because we have vacated ed support finding. this upon which com- two of causes of action awarded, damages Additionally, Companies argue were the com- pensatory MC that pensatory damages award has been reduced Court remit the punitive this should $4,594,615.22.29 ratio Applying the 7:1 to to unconstitutionally award it because exces- compensatory the reduced amount of dam- regard, sive. contend this first that damages award punitive results in a court'improperly the circuit considered the $31,978,521.93. analyze Accordingly, we will acknowledged existence of insurance and punitive damages propriety improper “weighted] that this consideration using figure approximately million. $32 heavily” in punitive its determination that the appropriate.31 award was MC argue punitive MC Companies that Companies complain further that circuit damages award must be vacated because the “public policy court commented that is best jury improperly trial court allowed the by imposing punitive damage served Care, Inc.’s, consider evidence of Manor puni- presence award intact because of the despite wealth absence evidence war- Next, damage they argue tive insurance.” ranting punitive damages against Manor punitive damages Care, Moreover, that the amount of Companies Inc.30 MC sub- grossly punitive damages disproportionate to the amount of require mit that a substan- damages. tially greater compensatory Companies MC showing permissible and are as- sert, only incorrectly, that the when meets total the defendant’s conduct $500,000 fraud, malice, damages upon in heightened “gross case are based standard this wanton, willful, oppression, They MPLA cap. argue, or then also reckless incor- rectly, conduct or criminal to civil obli- indifference the ratio this ease is 160:1. Inc., precise simply 6.96:1. will ratio is not be addressed. We have no Tfie way jury punitive know whether assessed III.C, damages against any particular entity supra such as 29. See dismisses Section which Mr. Care, claim, Douglas’ Nursing Manor Home Act Inc. Section III.D, Douglas’ Mr. claim which dismisses for duty. fiduciary breach of stated, point, 31.On this the circuit court its Games order: Companies additionally 30. MC their reasserts ar outset, theAt it should noted that be West gument jury that the trial court failed to ask the Virginia long history developed well has a to determine whether the of each conduct indi precedent regarding punitive damages. See Pu- egregious vidual was so it defendant that war Damages Virginia, nitive Law in West Robin Jean punitive damages against particular ranted Palmer, (2010). Jr. Davis Louis This Perrine opinion, defendant. noted As elsewhere this impression in order involves issues of first West III.A.2., supra. Companies see MC Section waived First, Virginia. reprehensible case involves argument. Accordingly, because the defen wrongful conduct which resulted death of together grouped jury’s were dants for deter Dorothy Virginia pro- Douglas. No case in West punitive damages mination of whether were war punitive damages vides a benchmark measure punitive ranted and the amount of Second, awarded, punitive in such entire spe context. impossible it is which ascertain damage verdict is covered insurance. These cific defendants were found justice reason, weigh heavily subject damages. on the scales For this factors when any arguments determining puni- Companies per $80 whether million asserted MC defendant, taining damage appropriate to an individual tive award is under such their West argument evidence that the was insufficient law. Care, (Second added). punitive damages against emphasis warrant Manor

7Q argue should wealth and tax returns were not mentioned Companies MC that this Court closing arguments. until Compa Finally, a 1:1 only allow ratio. MC dam that the amount of argue nies Douglas Finally, argues puni- Mr. that the grossly disproportionate to civil ages are damages award tive was not excessive and comparable They as conduct. penalties require Douglas does not remittitur. Mr. penalty the maximum under sert civil Companies asserts that MC vari- submitted govern violating provision the NHA puni- ous financial evidence to establish the staffing nursing home is ing appropriate in a damage effectively tive award would wipe out $8,000. Citing § 64-13-16.9.a. W. Va.C.S.R. profit over nursing the of 500 of its homes. that, similarly, They the federal fine Therefore, contend awarding punitive in damages, the nursing put home resi deficiencies that properly trial court considered the fact that in jeopardy” “immediate is a Companies purchased dents’ health MC had million $125 $10,000 Citing 42 per day. punitive damages liability in coverage. maximum Mr. 488.438(a)(1)(I). Companies Douglas § clarifies punitive C.F.R. MC further that the that, damages represents only award ratio argue accordingly, federal a 7:1 the maximum to compared when the actual which sub penalty to would have been damages in awarded this case. ratio stay Such a ject Douglas’ nineteen-day is for Ms. acceptable is in a case such as this where the $190,000. Companies’ trial court found MC conduct Douglas responds punitive Mr. that intentional, reprehensible, self-serving, be in damages clearly justified was this financially motivated. Douglas Mr. also case because evidence demonstrated that, arguing punitive contends that the Companies’ MC conduct was intentional and reduced, Companies should be MC proximately actual malice and demonstrated complete analysis failed to conduct a Douglas. death of Ms. The actual caused the applicable penalties civil or criminal Companies malice of MC was demonstrated imposed. example, they could For fail Nursing the fact Heartland Douglas consider the death Ms. as a result n short-staffed, and, constantly Home was of their conduct. therefore, the basic needs of its residents of Review. have Standard We Doug- met. regard, could not be Ms. following re established the standard for treating physician las’ testified that she died viewing punitive damages awards: dehydration. as a result evidence Further reviewing punitive an award When attempted Companies demonstrated that MC point Syllabus in accordance with surveyors state regarding to deceive their Inc., Fleming Landfill, v. 186 5 of Garnes practice 'short-staffing facility. More 656, (1991), Syl 413 S.E.2d 897 W.Va. according importantly, Douglas, to Mr. is the 5 of point labus Alkire First National v. ample fact that MC that there evidence 122, Parsons, Bank 197 475 W.Va. Companies problems yet were aware of these (1996), S.E.2d 122 this Court will review de knowledge nothing did to correct them. This jury’s punitive novo award of complaints employ- form came in the from ruling approving, and the circuit court’s ees and a citation that had been issued to the rejecting, reducing such award. or facility, Douglas’ prior Ms. admission to 16, Mining, Syl. pt. Edge Peters v. Rivers Home, Nursing failing Heartland have 160, (2009). Inc., 224 680 S.E.2d W.Va. 791 Nevertheless, adequate Compa- staff. MC Furthermore, reviewing punitive dam- budget. staffing nies failed increase its award, ages all evidence will be viewed in Next, Douglas argues light Douglas Mr. that the circuit most favorable Mr. jury prevailing party improperly court did not allow below: “ Care, Inc.’s, consider evidence of Manor determining ‘In whether the verdict that, contrary He states to MC evidence, wealth. supported by every jury assertions, Companies’ company’s inference, fairly wealth legitimate reasonable “centerpiece dam- arising was not a of their the evidence in favor of from Rather, Care, returned, Inc.’s party case.” Manor for whom verdict was 80 it, jury facts, considered, legislative enactment authorizes which and those

must be exemplary, punitive, or vindictive may properly find under the assess jury might being synonymous.” evidence, Sylla- damages; these terms as true.’ must be assumed 246, 4, 22 S.E. 58. 3, Monongahela Syl. pt. Mayer, 40 Pow- W.Va. Point Walker v. bus 825, 4, Nat’l Co., Syl. pt. S.E.2d 736 Harless v. First also W.Va. See er Fairmont, (1963).” Hager, Toler v. Syllabus Point 169 W.Va. Bank (1999). (“‘Punitive exemplary or 205 W.Va. case, as, proper in a damages are such Cross, v. Syl. pt. Smith by way of may against the defendant allow (2009). S.E.2d 898 wilfulness, wantonness, mal- punishment for standards, we will these Guided ice, wrong to aggravation like of his or other appropriateness address the compensa- full plaintiff, over and above Douglas. At the to Mr. damages awarded directly indirectly re- injuries tion for all that, outset, years, recent we note Syllabus Point sulting wrong.’ from such analysis specific to be refined the Court has Snodgrass, 123 O’Brien of a conducting our de novo review applied in (1941).”). S.E.2d 621 Thus, have we punitive award. concluded that the fore- The circuit court held that case and was met going standard Court, court, a trial re or [w]hen de- evidence related the relevant damages, punitive an award of views collectively32as follows: fendants whether the con first evaluate court must ample evidence to The Court finds there is plaintiff toward duct of the defendant punitive of support an award punitive damage plaintiff to a entitled Care Defendants. against the HCR Manor Frobe, 40 Mayer v. W.Va. award under notes that the evi- Specifically, the Court (1895), If progeny. and its 22 S.E. 58 trial was dence adduced at sufficient justified, damage was punitive award to conclude that: must then examine the amount court aggravating and pursuant award (a) incapacitated Dorothy Douglas was an v. mitigating criteria set out Garnes nursing operated resident of the home Inc., Fleming Landfill, 186 W.Va. by Manor Care Defen- jointly the HCR (1991), compensato and dants; damage ry/punitive ratio established (b) Dorothy Douglas neglected over a was Corp. v. Alliance Re Production TXO days nursing period of 19 at 457, 419 S.E.2d Corp., 187 W.Va. sources home[,] by which resulted in her death (1992)[, aff'd, 509 U.S. 113 S.Ct. dehydration; 2711, 125 ]. L.Ed.2d 366 (c) neglect perpetrated by the The was Perrine, 694 S.E.2d Syl. pt. 225 W.Va. employed by the nursing home staff Accordingly, we first “evaluate whether 815. Defendants; Manor Care HCR the defendant toward the conduct of (d) Care Defendants The HCR Manor plaintiff to a plaintiff entitled short-staffing chronic were aware that Frobe, Mayer v. damage award under nursing jeopardized the of its homes (1895), proge and its 22 S.E. 58 residents; safety health and of its Perrine, 815. ny.” (e) in- The HCR Manor Care Defendants Analysis. Mayer v. Frobe tentionally disregard to a acted with Frobe, Mayer v. this Court established high probability risk with the known that could form the basis types of conduct ne- harm would result from .the punitive damages: “In actions of an award of incapacitated residents of its glect of fraud, malice, tort, oppression, gross where home; nursing willful, wanton, or reckless conduct or or (f) pos- Defendants The HCR Manor Care obligations af indifference to civil criminal knowledge under- actual of its appear, where sessed rights of others or fecting the supra 32. See note 30. facility. Moreover, nursing

staffed home and the at- by risks virtue of com- conduct; staff, tendant and plaints residents, to its from and their fami- lies, surveys conducted the State of (g) The HCR Manor Care Defendants Virginia, MC Companies West were made placed neglect were notice in its on understaffing aware of the residents, problem at Heart- nursing home resident families, Nursing land Home in the months regulators preceding staff state but Douglas’ Ms. appropriate facility.33 failed to take admittance to the action. Despite knowledge their understaffing incapacitated Neglect of an of a resident home, problem thereby, risk created nursing results in MC which death dehydration, span Companies failed to days, over of 19 increase the staff at justify Nursing Furthermore, conduct which is sufficient to an Heartland Home. troublesome, punitive damages award under West most was the evidence that MC Moreover, knowledge law. actual Companies attempted to conceal fact that systemic home, neglect a nursing over Nursing Heartland Home was understaffed period years, months rises to by providing during additional staff times intentional, wanton, level willful and facility being inspected. when the This reckless conduct. The HCR Care Manor satisfy evidence is sufficient to Mayer engaged Defendants in a reckless disre- Therefore, punitive Frobe standard. dam- gard rights nursing for the lawful its justified. were We next examine the home residents which resulted in the punitive damages amount pur- wrongful Dorothy Douglas. death of suant to the Games factors. presented at evidence trial is consistent justifies with and an award 3. Amount of Punitive Dam Mayer under the test.... Perrine, Award. Court revisit (Footnote omitted). ed the factors set out in Games and deter mined punitive damages that “court review of agree We with the circuit court’s conclu- awards be if simplified The would the presented [Games sion. evidence at trial was ] grouped according factors were pur sufficient establish Heartland Nurs- their chronically pose.” ing Home was 225 W.Va. at S.E.2d understaffed to the at 886. point provide Accordingly, that it the was not able to Perrine Court restated even the follows, sustaining Doug- life of water changing amount to Ms. Games test as without during days las nineteen she resided substance the test: regard, In this a Statement of Deficiencies by Virginia Department assistants) ], issued the West (Nursing during [ Nas confidential Health and Human Services Heartland Nurs- that, reported having only interviews with four ing prior Douglas’ residency Home to Ms. there floor, (4) per impossible it Nas was to do declared: everything they supposed citing to do interviews, interviews, Based on staff family resident practice prompt response hinders to call nursing review interviews and of the bells, caring for incontinent residents in a worksheet, staffing facility failed to consis- timely manner and noted that tasks like tently deploy nursing sufficient all staff across get mouth care often did done not with short shifts and units to meet the assessed needs staffing. dependent by This residents. was evidenced stated, during family A interview, that, member a confidential (5) (5) reports given by five five alert 04/18/09, only on there were residents, during oriented confidential inter- (4) working family NAs four floor, on her member’s views; (7) (7) facility seven dur- seven staff (70) seventy which housed residents. interviews; ing family confidential and a complained facility She she has to the stated residing member of a resident current problem repeatedly staffing of too low facility. practice poten- This deficient has NAs, addressing levels of but rather than facility.... tial to affect all in the residents problem, up. the NAswere written Findings include: residents, during Alert and oriented confiden- a) interviews, staff, During confidential resi- interviews, dents, tial not stated it was unusual to verbally family reported the inabili- help have wait for an hour ty get more than during completed even care the basic (1) pushing after the call one facility bell and resident times when the was short-staffed with assistants, long help, nursing pushing notably said she waited so after most on the week- bell, ends .... the call that she voided in her bed. is The Court finds that there sufficient appellate court reviews a trial or

When for the conclude HCR damages for evidence punitive exces- knowingly Care en- Syllabus points 3 and of Manor Defendants under siveness Inc., Landfill, in an and malicious Fleming gaged . intentional Garnes (1991), neglect resulting in the course of conduct Douglas. neglect proxi- whether the Dorothy should first determine Such court punitive damages by dehydra- award is mately her death amount resulted in by aggravating evidence includ justified ... tion. (1) reprehensi ing, to: but limited HCR Manor Care The conduct conduct; (2) bility of defendant’s reprehensible it is because was Defendants from profited the defendant

whether was sufficient not an isolated event. There (3) conduct; posi the financial wrongful presented at trial to establish evidence (4) defendant; appropriate tion of the through- Dorothy Douglas neglected was encourage punitive damages to ness of day her 19 ordeal at Heartland of out when settlements fair and reasonable Nursing [Heartland Home]. Charleston (5) committed; and wrong has clear been immobile, fell, Douglas Dorothy became litigation plaintiff. The the cost of trauma, significant head devel- suffered whether a re court should then consider sores in mouth .for which the oped her punitive in the amount of duction scraped away with dead tissue had to be to miti permitted should due on scalpel, suffered and sores her bruises including, but not limited gating evidence body, depleted and was so of water that (1) whether to: dehydrated became and died. she relationship to the bear a reasonable likely harm that is to occur has The conduct the HCR Manor Care and/or as a' of the defendant’s occurred result reprehensible because the Defendants (2) conduct; whether systemic, repetitive and neglect [a]f- compen relationship to bear a reasonable other as well. Plain- fected residents (3) damages; litigation satory the cost of survey presented tiff of a dated evidence defendant; any criminal sanc April before the residen- months imposed defendant for tions on the his Dorothy cy Douglas, conducted state conduct; civil other actions regulators which cited the West upon the based same defendant nursing “consistently home for failure to (6) conduct; the same relevant informa deploy nursing sufficient staff across all (cid:127) the jury tion that was not available to shifts and units to meet the assessed needs unduly prejudicial it was the because survey dependent The re- residents.” (7) defendant; and additional relevant evi staff, from vealed confidential interviews dence. family members who “ver- residents Perrine, get even bally reported inability to the Syl. the pt. 225 W.Va. at completed during care times when holding, basic Following S.E.2d at 886. we facility nursing was staffed with the the short aggravating first review evidence as- damage notably most on weekends.” certain whether assistants the Wilson, Regional justified. ... Mark Manor Care was (for Operations seven HCR Director Aggravating Games Factors. a. The nursing Virgi- Care Manor homes West aggravating court set out circuit in detail the Home]) nia, [Nursing including Heartland presented evidence that was at trial. We will survey the that he was aware of testified light of each of review evidence in the Dorothy prior results the admission aggravating Games factors. problem.”... Douglas, and it was a “knew (1) aggravating The first factor Games Furthermore, reprehensibility adduced the Plaintiff evi- considers the defen- the jury to at trial for a deter- conduct. court concluded dence sufficient dant’s The circuit Spe- reprehensible. conduct Companies’ reprehensi- mine the was that MC conduct was following: cifically, upon following the Court notes ble based evidence: (1) (a) nursing falsifying staffing staff eludes: An HCR Manor Care schedules (Tara Bowles), (2) ...; assigned intentionally-miscalculating member to at- (3) ...; Dorothy Douglas, nursing tend described the hours destruction of nursing ...; complaints neglect conditions in home as written reprimanding employees “horrible” and “unbearable.”... She for document- ...; many ing neglect [sic] testified that “there is too increasing the patients care of our- during for us to take number of inspec- staff State lay tions....; patients selves” and would their urine and feces.... She admitted that (f) The Care HCR Manor Defendants ac- she and rest of the staff “couldn’t knowledged regulators, prior to state way patients take care of the we admission, Dorothy Douglas’ should She have.”... testified: “I home, nursing particular- West there.”; put my dog wouldn’t floor, ly the second was understaffed (b) nursing An HCR Manor Care staff approximately of the time [on 46% Crawford), supervisor (Beverly who Dorothy Douglas weekends]. was a Dorothy Douglas, also attended testi- resident of the second floor. mem- [A given, patients fied the “weren’t nursing ber of staff the] testified the proper care that deserved.”... facility actually short-staffed 99% reported She testified she resident nursing of the time. home admin- neglect to the Manor Care ad- HCR istrator testified that he was aware [of] “yelled” ministrator at her for who staffing falling state below mínimums documenting neglect patient and re- on'occasion_Despite acknowledging books_ report moved the from nursing problem, home was still Manor She accused the HCR Care ad- during the short-staffed residence of covering up ministrator inci- Dorothy Douglas. dent. ... Games, this Court indicated that (Paula (c) registered Langston) A nurse reprehensibility consideration (Heritage facility [Cen- from another long should take how into account de- ) provided ter] testified that she care actions, fendant in his whether continued Dorothy Douglas morning after causing he was aware his actions were she was from HCR transferred Manor harm, likely were to cause whether he that, opinion, Dorothy Care and in her attempted up or cover his ac- conceal appeared a victim of to have been ne- them, tions or the harm caused wheth- glect. ... engaged often the defendant er/how (d) An HCR Manor Care human resource past, similar conduct in the and whether (Devon Revels) director- testified that reasonable efforts defendant made regional complained manage- she offering make amends a fair and Virginia nursing ment about the West prompt for the settlement actual harm short-staffed, being home staff over- liability caused once became clear to his underpaid.... worked and work [T]his him. great[er] environment than a eause[d] Garnes, Syl. pt. part, in 186 W.Va. nursing 100% turnover rate the de- with agree the circuit court We partment.; Companies’ reprehensi MC was that conduct (e) The HCR Manor Defendants ac- Care ble. tively covered-up concealed and their aggrava Games prior

misconduct to the death of Doro- The second ting profitability of the thy Douglas. Plaintiff adduced ev- factor is the The wrongful analysis “requires idence at trial that the Defendants in- conduct. This tentionally attempted [the defendants] of whether altered data consideration systemic up staffing profited from conduct and instructs [their] cover their problems punitive damages should remove the regu- from that West profit, profit, lators. This intentional conduct in- and be in excess so as to record and the policies were submitted of by acts defen- discourage [the future bad notice, judicial excep- with no Perrine, Court takes at dants].” Defendants, by that the tion taken the court concluded The circuit S.E.2d at 887. expressly provide cover- policies profited from their insurance Companies that MC Furthermore, damages_So, in reali- age punitive insofar as wrongful conduct. “wipe out” the ty, this verdict will not damages award should remove punitive financially. only economic Defendants discourage future bad acts profit as to so Manor Care Defendants weighed cost to the HCR Companies, the circuit court MC poten- post-trial in the review is a had million adduced Companies that MC $125 fact the. tial, insur- un-quantified increase future that would cover the liability insurance premiums.... regard, the ance punitive damages award. In this circuit court stated: added). (Emphasis evi- The Court finds there is sufficient with the circuit court’s find no error We adduced at trial for dence large punitive damages that conclusion short-staffing conclude that necessary ease is to remove directly related to cor- nursing home was wrongful Companies’ con- profitability of MC presented ev- porate profits. The Plaintiff Companies MC was able to achieve duct. largest staffing that is the idence at trial employees to higher profit by having fewer nursing in the home indus- expenditure expense profit was achieved at the pay. This

try. ... properly cared the residents who were not Companies’ MC for. As a direct result of persuaded by The circuit court was Devon staff, adequate neglect provide failure to Revels, resource director at a former human Douglas was severe she Home, suffered Ms. so Nursing that Heartland who testified addition, In we unable to survive it. authority was repeatedly requested to hire she reject Companies’ argument that MC agency employees, requests but her more having punitive insurance cov- opined that existence of were refused. Ms. Revels improper for the nursing erage was an consideration agency nursing working staff at the assessing propriety of the court in approximately home one month when a trial employees going through punitive damages award. The existence group of new coverage punitive damáges insurance is rele- prevent employees the new orientation would the factors used to evaluate becoming vant to several of from overwhelmed the short- only it punitive damages award. Not does staffing facility and would enhance her at the punitive damages remove impact whether the ability employees. to retain new She indicat- profit wrongful con- resigned achieved from employees ed that often before new duct, it also bears a relation to the wealth completing their orientation due to short but and the deterrent effect of staffing facility. of the defendant it award insofar as goal that a dam- Relevant to the the defen- reduces the financial burden on gained profit remove the award should pay award. dant to conduct, wrongful from the circuit court re- aggravating factor argument The third Games jected Companies’ MC position. “‘effectively wipe[] out’ the is the Defendants’ financial award would issue, examining the circuit court ex- profit nursing Manor Care of over 500 HCR may bankrupt plained ... ... ... and homes ” destroy The circuit the Defendants.... assign The HCR Manor Care Defendants Care, court reasoned that of the Manor Inc. error to the use argue, first tax return and for the time the HCR Manor Care Defendants only Heartland of Charles- purchased liability post-trial, that million insur- $125 should have dispute ton’s financial information coverage ance. There is no and no ... at trial.34 rights. reservation of ... The insurance been introduced post-trial. produced judicial was not until notice that Charleston [circuit court] 34. The takes the financial information for Heartland of Care, Inc.’s, position ... assessing untenable[.] [D]ue This is Manor wealth in the to the Care deci- propriety punitive damages HCR Manor Defendants’ the award. try entity singular Companies sought sion to this matter as a Because MC to be together all in grouped and to consolidate of the Defendants with only upon one line award, singular punitive damages jury a placing place punitive which could the dam- award, into financial each it appropriate evidence the worth of for the Defendant would have been redundant consider the wealth of all defendants. encompassed re- MC Companies consolidated Insofar as ais multi-billion Care, turn entity for Manor Inc. punitive dollar with million in $125 damages coverage, approxi- insurance The HCR Manor Care Defendants mately million punitive damages dollar $32 agreed during jury charge justified. award is single wanted all of the Defendants on a Care, line [on form]. the verdict Manor aggravating fourth The factor in the Ine.[,] disclosed the 2009 tax consolidated analysis punitive Games whether record[,] return for trial evi- [the] which encourage award will fair and $4,085,072,446.00 revenue, dences in total reasonable settlements. This Court has ex- $7,917,892,414.00 total assets of a net plained that $75,263,092.00. profit of HCR Care Manor reviewing [t]he focus court’s consid- Regional Operations, Director Mark eration of whether punitive damages Wilson, testified HCR Manor encourage award would fair and reason- 60,000 employ Care “nearly Defendants able impact settlements is on the it is employees working in over 500 locations likely is, to have on litigants. future That nationwide.” ... large enough was the award so that a The HCR Manor Care hold Defendants future defendant who has committed a a nursing billion share of the $4 annual wrong encouraged accept clear will be a report nearly home market and billion $8 fair and reasonable settlement rather than in assets. The HCR Manor Care Defen- wronged plaintiff litigation force the into reported operating dants a net profit incurring similarly large puni- risk a million in 2009 alone. Given HCR $75 tive award. Manor Care re- Defendants’ size and Perrine, 225 W.Va. at S.E.2d at sources, large punitive damage award is factor, In its discussion of circuit required pur- reasonable and to serve the court stated: pose punitive damages. parties proffered The various versions of defendant(s) While the wealth of a can- negotiations during the settlement the in- justify not punitive unconstitutional stant matter. The indicates record award, the award in this case is HCR Manor Care Defendants offered to Indeed, unconstitutional excessive. wrongful settle this death claim for accomplish punishment and deterrence $150,000 at mediation and raised its offer wealthy for such company, $500,000 sometime before trial. The damage large. necessarily award must record also reflects Manor the HCR Care Perrine v. E.I. du Pont de Nemours spent have Defendants over million in $1.1 Co., litigation defenses.... (2010). particularly This is true when documents submitted .Court “punishment” aspect of a dam- indicate the HCR Manor Care defendants age presence award is offset $125 nearly spent defending million mil- $10 $13 million in punitive damage insurance. lion in claims. The reveals the record This verdict a clear “deterrence” .sends willing spend Defendants as much message nursing to a multi-billion dollar money defending settling claims as claims. corporation home that its will misconduct Such a business decision does not evidence not be Virginia. tolerated in West willingness when a settle claims clear fact, agree We with circuit wrong spending court’s conclu- has been done. sions and find no error on defending reliance million million in claims $10 $13 86 wit, of Punitive opposite; b. Excessiveness to HCR

evidences Damages step in our Award. The next anal spend nearly will Care Defendants Manor compare punitive damages ysis is to money defending claims as set- much damages compensatory to the award claims, award wrong though even a clear has tling punitive damages determine whether the to been done. relationship to the a reasonable com bear punitive finds dam- The Court that this damages. court pensatory The circuit con encourage will the HCR Manor age award that the ratio was not excessive cluded reconsider its defense Care Defendants to below, fully As more case. discussed West deny when a and defend clear tactics recognized rough has that a ratio wrong been committed. has 15, TXO, Syl. pt. See ly 5:1 is constitutional. that agree with circuit court We Moreover, 457, 419 S.E.2d 870. 187 W.Va. punitive damages awarded in amount government federal has indicated that a Compa- likely encourage is to MC this case likely comport to single-digit ratio is more large corporations and other similar nies State process. federal due See Farm with disputes through settlement resolve similar Campbell, 538 Mut. Auto. Ins. Co. v. U.S. case, when, litigation as in this a rather than 155 123 S.Ct. L.Ed.2d wrong has been committed. clear (“Single-digit multipliers more 585 aggravating final factor Games likely comport process, while with due still plaintiff. litigation to the is the cost achieving goals the State’s of deterrence and court found that retribution.”). The circuit agree with the circuit We passes in this ease court that 7:1 ratio in excess expended Plaintiff [t]he constitutional muster. $200,000 litigation and devoted costs attorney bring time to countless hours TXO, explained In this Court that Prosecuting to tidal. this ease this case “[although there no mechanical mathemat is lawyer capa- requires plaintiff a to retain a punitive damages formula to in all ical use financing litigation costs on ble cases, appropriate think here to offer we it Otherwise, contingency very fee contract. broad, general guidelines concerning some Virginians bring few could afford West punitive damages whether bear reasonable jus- HCR Manor Defendants Care TXO, relationship damages.” actual neglect wrongful death of tice for (emphasis at 419 S.E.2d at 887 W.Va. family member. be noted It should added).35 Thus, we held bringing cost of this case to trial ex- outer the ratio of [t]he limit of by the ceeded the last offer made HCR damages compensatory Care at mediation. Manor Defendants in which has cases the defendant acted justi- litigation Plaintiff The cost of negligence with extreme or wanton disre- punitive damages. fies this award gard but \vith intention to cause no actual agree with circuit court that the We compensatory damages and in harm which Douglas litigation Mi*. high cost of this very large nor negligible are neither supports amount However, roughly 5 to 1. when the defen- in this case. awarded intention, acted evil dant has with actual higher per much are not se unconsti- ratios aggravating Because each of factors tutional. award, punitive damages supports we 15, TXO, 457, 419 engage Syl. pt. in a next ratio determination under added). Similarly, the (emphasis United Corp. TXO Production v. Alliance Resources (1992). Supreme commented Corp., States Court has 187 W.Va. 419 S.E.2d ' TXO, punitive damages when intent ... was to reduce award of tide” "TXO's real $10,000,000 gas payments and a royalty an oil and under" lease. $19,000, 526:1, equals which a ratio of Corp., Corp. Prod. Res. TXO 457, 462, Alliance "knowingly approved where the defendant (1992), aff'd, intentionally brought declaratory a frivolous 2711, 125 L.Ed.2d U.S. (1993). 113 S.Ct. judgment action” various businesses and purported to “clear a cloud on a individuals

87 awards,” again impose bright-line Gore, 582, decline [w]e 517 U.S. at 116 S.Ct. at 1602; punitive damages ratio which a award can- conversely, compensato- and “[w]hen jurisprudence not exceed. Our and ry substantial, damages are then a lesser principles it has ratio, now established demon- perhaps only equal compensatory strate, however, that, practice,- few damages, can reach the outermost limit of exceeding single-digit awards ratio be- process guarantee,” the due Campbell, 538 compensatory tween and dam- 425, U.S. at 123 S.Ct. at 1524. Consistent ages, significant degree, satisfy to a will Supreme with the Court’s refusal to estab- process- Single-digit due multipliers benchmarks, rigid lish these statements likely comport are more pro- with due provide guidance specific rather than a cess, achieving goals while still the State’s i.e., in way the same that low mandate — retribution, of deterrence and than awards compensatory “may” justify awards higher ..., or, range with ratios in the of 500 to 1 ratios, smaller ratios “can”' reach the out- case, in this of 145 to 1. process ermost limits of due when the [Bjeeause ... rigid there are no bench- compensatory award is In substantial. punitive damages may marks that a words, appears other it compen- that low surpass, greater ratios than those we satory may, awards but do not necessari- previously upheld may comport have with ly, justify ratios; higher and in the same process particularly due egregious where a way, substantial compensatory awards only act has resulted in a small amount of may, but do not necessarily, require lower damages.... economic The converse is ratios. true, compensatory also however. When Morton, 225, 294-95, 154 Seltzer v. 336 Mont. substantial, damages are then a lesser ra- 561, added) P.3d (emphasis 610-11 tio, perhaps only equal (footnotes omitted). Campbell Even the damages, can reach the outermost limit of Court’s observation “[s]ingle-digit multi process guarantee. due pliers likely are more comport with due 425, Campbell, 1524, 538 U.S. at at S.Ct. process, achieving while still the State’s de (internal 155 L.Ed.2d quotations and ci- goals,” terrence and retribution pro does not omitted). tation claim an Campbell, iron clad rule. 538 U.S. 410, Notably, 1516, the 5:1 ratio mentioned in at 123 S.Ct. at 155 L.Ed.2d 585. TXO, Syllabus pont Indeed, 15 of as well as the ratio although Supreme sug Court statements Supreme United States gested Campbell that a ratio at or near 1:1 Court, represent do not strict standards. In may. appropriate instance, in that on re stead, they merely provide guide.36 As one Supreme mand ultimately Court of Utah court has observed: .granted an approxi award with a ratio of mately Campbell 9:1. Supreme

[Statements See v. State Court dis- Farm Co., (Utah specific cuss ratios with reference to Mut. Auto. Ins. 98 P.3d 2004) amount of compensatory damages (awarding award- above, $9,018,780.75 ed. As noted “low awards of com- compensatory damages pensatory million), damages may properly denied, support cert. 543 U.S. $1 higher high compensatory (2004).37 Thus, ratio than S.Ct. 160 L.Ed.2d 123 fact, granted punitive damages 36. In the award legitimate TXO amounted serve a means to satisfy Corp. objectives punish to a 526:1 ratio. See TXO a state’s Prod. v. Alliance and deter Corp., Res. behavior which it deems unlawful or tortious 870. traditions, based on its own values it seemingly creating would be bound to avoid decision, reaching Supreme its Court of imposing on the states a nationwide code recognized Supreme Utah the United States personal corporate behavior. Court’s reluctance to establish a national stan- instance, In this we find the blameworthi- reprehensibility, dard for and commented that ness of State Farm’s behavior toward the [j]ust may as behavior be unlawful or tor- Campbells degrees to be several more offensive another, tious in one state and not in Supreme than the tory Court’s less than condemna- degree assigned of blameworthiness to conduct view that State Farm's behavior "merits may among long also differ praise.” states. As no Id. at 123 S.Ct. 1513. We Supreme applying Court stands its view that reach this conclusion after the rele- USA, Inc., 466 Mass. Toys are more SLB multipliers “[s]ingle-digit while Camp (affirming punitive dam- process,” with due likely comport N.E.2d 410, ratio, bell, 123 at 155 in at S.Ct. million ages 538 U.S. award with 6.8:1 $2.6 ratios, added), higher (emphasis L.Ed.2d 585 million in damages and compensatory $18 ratios, digit per are not triple even double or negli- damages, alleging in action punitive See, e.g., TXO Prod. unconstitutional. se warranty, implied gence, breach of 457, Corp., Res. Corp. v. Alliance death arising from woman’s wrongful death puni ratio of (upholding 526:1 419 S.E.2d 870 trying to use inflata- Injuries sustained from damages), compensatory damages to tive slide); swimming pool ble Horizon/CMS 443, 2711, 113 S.Ct. 125 aff'd, 509 U.S. Auld, Tex.Sup.Ct.J. Corp. 43 Healthcare v. 366; Philip Morris Williams v. L.Ed.2d (2000) 1151, (affirming puni- 34 S.W.3d 887 (2008) (affirm Inc., 45, 176 P.3d 1255 344 Or. ratio, damages award with 6.15:1 $1.54 tive following re 159:1 ing with ratio of award compensatory damages and $9.48 million in Court), Supreme from United States mand involving damages, in punitive in ease million 178, 1436, dismissed, 129 S.Ct. U.S. cert. 556 negligence, negligence gross claims of curiam). (2009) (per See L.Ed.2d 346 173 death, nursing resulting in a Gill, also, Prop. Dev. LLC v. e.g., Eastern home). (11th 13-10219, Fed.Appx. 882 Cir. 558 No. 2014) damages (affirming punitive award may gleaned from the for What be ratio); Banking Saunders v. Branch with 7:1 compensatory going cases is (4th Virginia, 526 F.3d 142 Co. & Trust damages ratios must be examined on a case- Cir.2008) punitive damages award (affirming See, Ewing California, by-case e.g., basis. ratio); Haberman v. The 80:1 with Hartford 11, 34, 123 S.Ct. 155 538 U.S. Cir.2006) (af (10th Grp., 443 F.3d 1257 Ins. (2003) (commenting “the L.Ed.2d 108 damages award with 20:1 firming punitive judges employ Process Clause directs Due Inc., ratio); Lodging, Mathias v. Accor Econ. assessing the con proportionality review (7th Cir.2003) (affirming puni 672 347 F.3d stitutionality punitive damages awards on ratio); Hazard damages award with 37:1 tive basis”); Campbell, at ease-by-case 538 U.S. Home, Ambrose, Nursing Inc. v. No. 2012- (“The 1524, 155 425, L.Ed.2d 585 123 S.Ct. at CA-000636-MR, (Ky.Ct. 2013 WL '3808018 case, course, any must be precise award in 2013) 19, (affirming punitive dam App. July the facts and circumstances of upon based ratio); Lever with 7.5:1 Miller v. award and the harm to the the defendant’s conduct Ctr., LLC, 202 ing Reg’l Health Care S.W.3d TXO, 458, U.S. at 113 S.Ct. plaintiff.”); 509 (Mo.Ct.App.2006) (affirming punitive 614 (“ not, 2720, 125 L.Ed.2d 366 ‘Weneed at ratio); with 24:1 Coalson v. damages award cannot, we draw a mathematical Canchola, 242, indeed 754 S.E.2d 525 287 Va. constitutionally ac bright line between (reversing remittitur and rein lower court’s ratio). constitutionally unaccepta ceptable and the stating jury’s with 18:1 ” (quoting every case.’ Pa ble that would fit factually foregoing eases are not While 1, Haslip, 499 U.S. Mut. Ins. Co. v. matter, they never- comparable to the instant cific Life 1043, 18, 1032, 113 L.Ed.2d 1 111 S.Ct. examples instructive of cases theless serve as Inc., (1991))); Edge Mining, v. Rivers Peters high ratios to be courts have found wherein 194, 791, 825 within constitutional limits— justified and (“ case ... must precise award ‘[T]he high as 152:1 or 526:1! While even ratios as circumstances of upon the facts and be based award, the one large compensatory such as and the harm to the the defendant’s conduct case, may typically expected be in this (quoting Campbell, 538 U.S. at 1:1, plaintiff.’” range in a ratio closer to the result 585)).38 See, at 155 L.Ed.2d always e.g., Aleo v. 123 S.Ct. is not the ease. also, e.g., Trickey ap- v. Kaman Indus. Techs. reprehensibility 38. See vant standards to facts (8th Cir.2013) ("puni- repre- Corp., proved 705 F.3d for consideration of State Farm's II, case-by- damages light are evaluated on a hensibility Campbell tive awards Inc., basis."); Riffey Expedited, No. v. CRST and traditions. case 3:12-CV-00294-BRW, Utah's values Co., WL at *2- Campbell v. State Farm Mut. Auto. Ins. ("[P]unitive 2013) 2004). (E.D.Ark. (Utah Dec. P.3d course; Accordingly, pursuing and, we that whether the ers from now hold a similar provide compensation additional punitive damages ratio egregious to which plaintiff conduct is constitutional must be examined Furthermore, subjected.” has been ... case-by-ease on a basis. “ ‘[[p]unitive encourage damages] plain- aptly As the Ninth Circuit has stat bring tiff to might an action where he emphasize “[W]e that where the consti ed: discouraged by of the action or cost respect limit with tutional lies proceed- inconvenience of criminal vary will from to case. Deter case ing. provide ... [They a substitute also] art, science; mining that limit is an not a no personal revenge wronged par- controls; single mathematical formula no as ty.’” for all ymptote defines the limit cases.” 588, 22, Sopher, Coleman v. 201 W.Va. 603 n. Irvin, 788, Southern Union Co. v. 563 F.3d 592, (1997) S.E.2d 22 499 607 n. (quoting (9th Cir.2009). Jones, Payne v. 792 See also Fairmont, Harless v. First Nat’l Bank in (2d Cir.2013) 85, 102 (observing 711 F.3d 673, 17, 169 W.Va. 691 289 n. S.E.2d 692 & United Court in Supreme State BMW of text, accompanying 673, 169 W.Va. 289 Gore, America, 559, North Inc. v. 517 U.S. 692, & accompanying 702 n. 17 text 1589, (1996), 116 S.Ct. 134 L.Ed.2d 809 “re (1982)). Shipping See also Exxon Co. v. peatedly impossibility making stressed the of Baker, 471, 492, 2605, 554 U.S. 128 S.Ct. bright-line propriety test as 2621, (“[T]he (2008) 171 L.Ed.2d 570 consen- vary particular can with enormously ratio today punitives is sus are aimed not at ease”). facts compensation principally but at retribution conduct.”); deterring harmful BMW may unconstitutionally ratio that A be of Am., Gore, 559, 568, No. Inc. v. 517 U.S. 116 may in large one case be reasonable in anoth- 1589, 1595, (1996) S.Ct. 134 L.Ed.2d 809 regard, In in er. we stated TXO that (“Punitive damages may properly imposed appropriateness [punitive of dam [t]he legitimate further a State’s interests in ages] depends awards what it on reason punishing deterring unlawful conduct and its ably takes to attract defendant’s atten repetition.”). because, Games, tion as we said an that, unique findWe under the circum- might award be unreasonable if herein, presented punitive stances dam- against Neighborhood awarded Jeffs Hot million, approximately award of $32 Dog Stand quite could be reasonable if a which amounts to about 7:1 ratio when awarded the same conduct Mc compared, to of compensatory the amount Garnes, 670, Donald’s. See 186 W.Va. at .damages opinion, we have allowed S.E.2d at 413 910. justified process. violate due does not 476, at at 187 W.Va. 419 S.E.2d complaints face of numerous of under- Thus, determining propri staffing by made of Heartland residents case, ety the ratio in the instant we must Home, families, Nursing employees their involved, particular consider facts and we Heartland, negative well results of as view those will facts in the context of the surveys performed by the State of Vir- West punitive purpose damages: ginia, Companies MC refused to authorize damages pur- employees several “[P]unitive serve use of additional ensure (1) poses. Among primary ones are: staff sufficient to meet even the basic life- (2) punish defendant; residents, sustaining to deter oth- needs of its who are Members, basis.”); (Mo.Ct. case-by-case must be determined on a rel. Its 628 364 S.W.3d Co., Cooley F.Supp.2d ("[P]unitive 776 Lincoln Elec. App.2012) damages awards are eval (N.D.Ohio 2011) (commenting that basis.”); 555 “the Su- case-by-case uated on a Baldwin v. clearly preme Court has stated that: due McConnell, 273 Va. 643 S.E.2d process punitive damages review of awards is a (2007) (“[A] reviewing court must consider fact-specific, case-by-case inquiiy-there are no punitive the reasonableness of on a rigid benchmarks that a award basis, considering case-by-case the relevant cir omitted)); may surpass" (quotations not Holmes case."). particular cumstances in each City v. Kansas Missouri Bd. Police Comm’rs ex considering punitive damages citi- among helpless the most vulnerable any mitigating their whether factor warrants Virginia. Companies’ MC re- of West zens reduction. there was sufficient staff fusal to ensure that properly care Nursing Home at Heartland Mitigating Factors. c. Games residents, in- its either for the needs of mitigating “[a] We review factors because reducing creasing the number of staff or punitive damages award not constitu that is residents, corporate profit was implies that under Production tionally excessive TXO needs of emphasized over the residents. Corp. v. Corp., Alliance Resources (1992), aug- may nevertheless Action or omitted order taken when, degree reviewing in the profit be reduced court represents ment enhanced court, a is war as of does discretion of the reduction punishable culpability, course action, by mitigating Syl. pt. ranted evidence.” or malicious taken with willful Perrine, S.E.2d 815. injure. [Restatement See purpose to Thus, e, (Second) we note that p. § Comment Torts] (1977) (“In determining the amount include, mitigating Games factors [t]he punitive damages, ... the trier fact can to: but are not limited whether merely properly itself consider act relationship bear reasonable including the mo- but all circumstances (2) damages; puni- compensatory whether wrongdoer_”). of tives damages tive relation- bear reasonable ship likely to the harm that is to occur Baker, Shipping U.S. at Exxon Co. occurred a result of the has as and/or 2621-22, 493-94, 128 171 L.Ed.2d S.Ct. at conduct; litiga- of defendant’s the cost properly addressing the 570. Instead of defendant; (4) any tion to the criminal understaffing Nursing of Heartland chronic imposed on for his sanctions the defendant Home, Companies attempted MC conceal conduct; (5) any other civil actions by creating appearance ade- the same of same upon the same defendant based facility when quate during staff times conduct; (6) relevant that was information being by allowing post- and inspected, was its jury not to the it was available because staffing incorrectly higher ed data to reflect defendant; unduly prejudicial to and actually working.39 of staff than were levels relevant additional evidence. by the this Specifically demonstrated facts of Perrine, at at 891. case, egre- MC Companies’ conduct inflicted The found of these circuit court that none gious physical upon help- harm a weak and reducing punitive dam- factors warranted depended upon woman for her less who them ages agree. award in this case. We egregious physical care: harm that ultimate- ' ly this woman her Fur- helpless factor, cost life. Addressing the first reasonable- thermore, Companies’ MC wealth and the relationship punitive and ness of the between punitive damages damages, existence of million compensatory the circuit court $125 coverage high punitive single digit insurance demand a punitive found that the 7:1, of multiplier, approximates award to attract attention which bears a corporate discourage relationship to conglomerate, compensatory fu- reasonable conduct, Although the encourage damages. compensatory ture similar and it to dam- ages high, case is find the settle future cases for a reasonable amount we wrong punitive damages are reason- when it is clear that a has been com- nevertheless punitive Companies’ con- mitted. find the dam- able in this instance. MC Because we Douglas linger- ratio in this ease does offend due duct caused Ms. to endure ing dehydration consequence process, we next conclude our review of the death from as a there, post regard facility accu- that "the failed to record in this established that dence facility required by post daily law to total complete rate information on a basis nursing number responsible actual hours of certain staff actually of direct care staff reflect the number for resident care. The West facility, working the number of in the well as Department and Human in- of Health Services building, beginning at of each residents in the found, survey during stead its Heartland shift.” Nursing facility prior Douglas’ to Ms. resi- Home neglect that resulted from the understaff- the conduct the Defendants resulted in ing Nursing facility. of the- Heartland Home by dehydration. death Despite being made aware of the chronic ... Certainly, the death Dorothy Doug- understaffing Nursing at Heartland Home las occurred under horrendous circum- sources, including employ- various their own stances. The Court considers death Virginia, ees and the State West MC dehydration a cruel act injustice.... Companies presence refused to ensure the third, fourth, As factors, to the and fifth a sufficient number staff to meet the basic the circuit court made following findings: vulnerable, life-sustaining needs of its Companies presented MC evidence to the worse, helpless, sometimes residents. Even spent circuit court that approximately it $1.1 Companies MC attempted to conceal the un- matter; million to defend this no criminal derstaffing conducting from state officials imposed sanctions have been Compa- on MC surveys Moreover, facility. of their due to nies; Companies and MC failed to establish Companies the wealth puni- of MC and their have been any the defendant in tive coverage insurance mil- $125 arising other civil actions from the same lion, large punitive damages award is conduct. Likewise the circuit court found no necessary purposes punitive to achieve the mitigating relevant information that was not to,.at- damages, including, but not limited available to the and no additional rele- tracting the Companies, attention of MC dis- vant evidence. couraging conduct, them from future similar already We have reduced the encouraging them to settle future cases damages award from approxi- million to $80 for a reasonable amount wrong when a clear mately million. upon Based our $32 review has been committed. Because the factors, forgoing mitigating we find no damages award bears a reasonable relation- grounds to warrant further reduction. ship damages, this fac- provide tor grounds reducing fails to d. Remittitur. As noted at the outset of award. analysis award, óur punitive damages applied nearly ratio, we 7:1 which was factor, In addressing the second whether upon jury’s calculated based actual award punitive damages bear a reasonable relation- compensatory punitive damages, and ship conduct, to the harm of the defendants’ a punitive damages calculate new amount the circuit court found that upon based damages re- [n]eglect incapacitated of an in resident a maining Douglas’ after we vacated two Mr. nursing grievous home is a harm.... is, causes of applying ap- action. That proximate $4,594,615.22 7:1 ratio to the com- Dorothy Douglas The “harm” to pensatory standing, award that remains we by dehydration. death It could be said granted have remittitur pu- and reduced the greater there is no harm than the cost of a nitive award from million to $80 instance, life. In this the harm that is (a $31,978,521.93 difference likely to systemic occur as a result of $48,021,478.07). Perrine, See at W.Va. neglect incapacitated of an nursing home 560, (“The 694 S.E.2d at 893 method of grievous resident is and merits a substan- remittitur.”). granting such a reduction is punitive damage tial award. Perrine, In explained we residents, Many nursing home like Doro- thy Douglas, incapacitated and unable historic “[t]he rationale for remittitur perform basic life practice functions such as is that it saves the time and ex feeding, bathing toileting. This is the pense of a plaintiff new trial if the will very reason accept families sometimes entrust an a lesser sum aas verdict. The incapacitated family nursing plaintiff member to a expense is satisfied because the facility. avoided, home short-staffing Chronic re- a new trial is and the defendant is neglect. Neglect sults in incapacitat- of an satisfied because he or she either obtains a trial, ed nursing home resident can lead to new or has had the verdict 'death. In Dorothy Douglas, the case of him procedure or her reduced. Thus this dismissed, accompanying and the facilitating set- claim is the effect of

generally has addition, vacated. tlement, million award is thereby enhancing judicial econo- $1.5 insofar order is reversed the circuit court’s my.” duty fiduciary recognized a breach of as it (quoting at 893 at W.Va. against nursing a home. The breach claim Stores, Inc. v. North Allsup’s Convenience dismissed, is, therefore, duty fiduciary claim Co., 976 P.2d 127 N.M. River Ins. award also accompanying million and the $5 that, (1998)). a “[w]hen clear We also made Finally, punitive reverse the vacated. we remittitur, plaintiff must grants court and remand with instructions award accepting the option of either given give Douglas Mr. circuit court to to the electing a new in the verdict reduction thirty days from the date the man- period of Perrine, Syl. pt. trial.” opinion is issued to advise date for this pu Accordingly, we reverse the accept whether he will remitti- circuit court in and remand with nitive $48,021,478.07,which in amount of tur give Mr. circuit court to structions punitive damages award would reduce the thirty days the date from Douglas period $31,978,521.93, a new trial on or submit to opinion is issued the mandate damages only. he will ac court whether the circuit advise in amount cept remittitur Affirmed, Reversed, part; in part; in $48,021,478.07, puni reduce the which would Remanded. $31,978,521.93, or sub damages award tive damages only. trial on mit to a new deeming himself Justice KETCHUM Smith, Syl. pt. part, v. See Gebhardt participate in the disqualified, did (per cu 420 S.E.2d 275 decision of this case. riam) (“ 59(a), Virginia Rules of [West ‘Rule Procedure], provides that a new trial Civil MOATS, Judge, sitting by ALAN D. granted parties on all or may be assignment. temporary issues, where the a case part of in fa liability has been resolved question of part BENJAMIN concurs Justice leaving only issue of plaintiff vor of right to file part and reserves the dissents jury may verdict of the be set damages, the opinion. separate single granted trial on the aside and a new Syl. damages.’ pt. Richmond issue of concurs and reserves Justice WORKMAN 595, S.E.2d 877 Campbell, 148 concurring opinion. right file a the (1964).”). and reserves LOUGHRY dissents Justice IV. right dissenting opinion. the to file CONCLUSION BENJAMIN, Justice, concurring, part, in body explained the reasons the For part: dissenting, in April order of the opinion, the majority’s County denying the decision Kanawha the I concur with circuit court of rulings finding that circuit court’s judgment a matter affirm the defendant’s motion for as trial, (“petitioners”) waived law, defendants below or remittitur is affirmed the a new verdict form disre- issue of whether the rulings Companies that MC waived the as to its corporate forms of the garded the distinct verdict form disre- the issue of whether the improp- form whether the verdict corporate petitioners, of the garded the distinct forms' defendants, jury to award dam- erly permit the verdict form did not failed that the MPLA non-parties, and whether damages ages to jury to award to non- allow remedy for necessarily provides the exclusive provide did parties, and that the MPLA claims herein. negligence remedy negli- all of the asserted for the asserted the exclusive majority’s decision with the based I also concur gence claims. The order is reversed plaintiffs respect to the dismissal finding portion NHA of the with upon our that the duty NHA fiduciary claim and fatally vague; the NHA verdict form was breach dissent, however, claim.1 I majori- from the this Court to extraordinary sustain the dam- ty’s regarding awarding puni- decision awarded herein. Pertaining to the is- Specifically, liability tive herein. I sue of majority believe for which the allows recovery damages, that the verdict form justi- spe- was insufficient to the verdict form cifically jury asked fy any punitive the award of finding make a as simple to whether there was “negligence” case. on part petitioners substantially jurisprudence requires Our contributed to Dorothy the death of Douglas. Court, court, [w]hen this or a trial reviews Upon finding, such request- verdict form damages, award of the court jury ed that the distinguish.what percentage must first evaluate whether the conduct of petitioners’ neg- conduct was “medical the defendant plaintiff toward the entitled ligence” compared ordinary, “non-medi- plaintiff punitive damage to a award negligence.” cal jury was then asked to Frobe, Mayer 246, under 40 W.Va. ascertain necessary compen- (1895), S.E. 58 progeny. puni and its If a sate for such “ordinary negligence.” No- damage justified, tive award was the court where in the verdict jury form is the asked to must then examine the amount of the finding make a petitioners’ whether the pursuant to the aggravating and fraud, malice, conduct also “gross constituted mitigating criteria set out in Garnes v. oppression, wanton, willful, or or reckless Inc., Fleming Landfill, 186 W.Va. conduct or criminal plaintiffs indifference” to (1991), S.E.2d 897 compensato Mayer, below. supra. The verdict form ry/punitive damage ratio established simply proceeds whether, to ask jury TXO Corp. Production v. Alliance Re upon case,” based “the circumstances of the Corp., sources 187 W.Va. it found preponderance of the evidence (1992). punitive damages were warranted Syl. pt. Perrine v. E.I. du Pont de Nem petitioners. specific As to a find- Co., ours and 225 W.Va. 694 S.E.2d 815 ing of justify conduct sufficient to the award- (2010). Syllabus point Pursuant to May 4 of ing punitive damages, the verdict form is Frobe, er v. silent. tort, gross [i]n actions of fraud, where general rule, aAs a trial court has consid- malice, oppression, wanton, willful, or erable discretion in determining what verdict reckless conduct or criminal indifference form to use. Franklin Cleckley, D. Robin J. obligations to civil affecting rights of Davis, Palmer, Jr., Litigation Louis J. Hand- appear, others legislative or where enact- book on West Rules of Civil Proce- it, ment jury may authorizes assess dure, (2002). § majority As points exemplary, punitive, or damages; vindictive out, previously this Court has declined to find being synonymous. these terms part an abuse of discretion on the of the trial added). 40 W.Va. 22 S.E. (Emphasis failing duplicate court for language Syl. pt. Accord Alkire v. Nat’l Bank First used instruction on an essential Parsons, 475 S.E.2d 122 of (1996). form, element of a claim on the verdict 16-5C-15(c) § See also W. Va.Code where, when in viewed the context of control- (the NHA punitive authorizes damages for- law, ling the verdict form jury and the conduct that is “willful or in reckless disre charge adequately jury informed the of the gard resident”). of rights the lawful issues before it. See Perrine v. E.I. du Pont by my As referenced colleagues, despite Co., de Nemours and 694 (“In the distressing evidence wrongdoing view, of here- S.E.2d 815. this Court’s the crite- in, the confused verdict woefully form is in- determining rion for whether the discretion adequate proper legal to serve as a form, basis for is abused is whether the verdict to- Although I concur Accordingly, with the manner in strongly encourage Legislature which I the majority the plaintiff/respondent’s dismisses the express language to revisit the of the NHA and to upon particu- NHA claim based clarify the facts of application, particularly this its intent and case, multiple ways lar there are respect in which the with to the manner in which the NHA is legislative direction in the by NHA can be viewed. limited the MPLA.

94 NHA, it, majority any relating changes to under the the then gether with instruction puni- on jury jury’s to render verdict the course and the award of allows the affirms law, ignoring the with damages, issues framed consistent with tive the insufficient lan- evidence, jury’s guage assessing the own in the verdict for the and with convic- used form Wright & punitive damages, implying See 9A Charles Allan Ar- these inade- tions. Miller, by and quacies thur R. Federal Practice Proce- somehow “rescued” virtue of are (1995); that, jury § v. among myriad Civil Martin fact the of in- dure: 2d the Gulf (5th Co., received, jury States Utilities F.2d 34 Cir. structions the was instructed it Timmerman, 1965); jury Mayer v. the McDonnell on the elements. Where was (8th Cir.1959)”).2 given on F.2d instructions both punitive damages, it is a fatal However, noteworthy three there are ex- opinion inconsistency logic majority in of the to ceptions general this rule. Franklin D. negate this of the awards Court to some Davis, Palmer, Cleckley, Robin J. Louis J. compensatory damages upon an of based in- Jr., Litigation Handbook on West form, adeqúate negate to verdict but not also Procedure, § (citing of Rules Civil punitive damages upon award based the of Home, Nursing v. Sundale Barefoot I inadequate the same verdict form. cannot (1995)). The 457 S.E.2d 152 first W.Va. opinion simply picks countenance an which compelled by the forms is where verdict are inadequate to an and chooses when rescue omitted). (citation Id. The second statute. verdict form and when not to.3 involving multiple in cases of causes action. my exception Accordingly, opinion The it is that it Id. third involves added) damage (Emphasis (citing improper circuit cases. Id. for the court allow a Home, Nursing containing a punitive damages Sundale 193 verdict form Barefoot (1995)). multiplier jury in only ma- on a verdict which the erroneously simple jority opinion neglects give findings negligence made on the reasons, exception. the part petitioners. effect to third For these I finding would reverse the circuit court’s on case, finding In absént actual accordingly the jury’s this issue and vacate jury petitioners the committed an punitive damages.4 award for I therefore fraud, “gross malice, oppression, act of concur, dissent, respectfully part, wanton, willful, or reckless conduct or crimi- part, majority’s in this decision case. indifference,” vague nal with a we left form the only express verdict wherein find- Justice, WORKMAN, concurring: ings made this case were that petitioners simple I committed acts of concur in the result reached ma- “negligence.” dismissing respondent’s jority specifically, agree more I with its claim, analysis regard- majority aptly assignments 4.Because I do not believe that award of measure, policy large I3. believe in a that as case, punitive damages is warranted in this it is this, verdict case such as where it is obvious that analysis my unnecessary of for me discuss the been, was, jury likely could have and con- colleague, Loughry, puni- of the issue Justice on by fused taining insufficient verdict form ascer- damages dissent. tive in his damages, quality of it logical jury to conclude that the could have 3) majority’s handling Nursing million; of the Home Act amount of negligence and $5 (hereinafter “NHA”) majority million, claim. The the amount of which appor- it $5 inexplicably has refused to the cen- address constituting tioned as 80% non-medical or argued parties tral issue obvious “ordinary” negligence negli- and 20% medical —the duplicativeness damages award of gence.3 jury The further awarded mil- $80 startling ap- thereunder —and in a abuse lion in damages. Absent from the discretion, pellate simply has thrown out the form, however, verdict any cohesive de- ostensibly because it cannot make categories lineation of the damages various agree I sense it. While that the verdict recoverable, resulting in a somewhat admit- poorly form in this matter was constructed tedly confounding jury award. cogent,11 and is far from am unaware of majority The respondent concludes that legal authority permits which this Court to alleged both non-medical and neg- medical jury toss out a award like so garbage much and, ligence result, as a correctly rejects simply because it claims to be confused it. petitioners’ argument entirety majority If simply had addressed the respondent’s case involves “health care ser- argued by issue as framed and parties, governed vices” which are sense, exclusively by and as dictated common the same . the MPLA majority correctly The 96 damages, may assert available alternate damages violation of the claims but

ure for all of liability”); Wiggins v. theories of Eastern was the same. Corp., 178 W.Va. 357 Associated Coal inescapable the con- It fact —that is this (“The (1987) 745, appellant could S.E.2d 748 causes of underlying duct all various granted not have additional relief been particular the alleged in this case is action Virginia parallel under the West statute be singu- gave a same such conduct rise to and ‘[djouble damages recovery of cause is not lar, injury culminating wrong- personal in the permit not double permitted; the law does a Dorothy Douglas4 brings ful death of —which ” injury.’ Syl. single (citing satisfaction for vociferously into issue most briefed focus the 7, Harless)); part, Flannery Pt. v. United by parties the of which was argued and —all States, 27, (1982); 297 S.E.2d 171 433 W.Va. ignored by majority. the Peti- completely County Board McDowell v. Zan Educ. of presented of argues tioner that all of claims Inc., do, Milstead, 597, 182 Martin & W.Va. by the MPLA and therefore were subsumed (1990) (same). Accordingly, 390 S.E.2d 796 subject damages cap. its non-economic that duplicative the common law is clear Respondent presents contends that NHA damages permitted irrespective are not of an separate, basis for of dam- viable theories or claims advanced. number of ages, language as evidenced West however, Respondent, urges Legisla that the 16-5C-15(d) Virginia expressly § Code which for plainly ture intended to allow such provides remedies under that available stating penalties and remedies in “cumulative and ... in addition NHA are 16-5C-15(d) § West Code “shall be to,” Respondent at law. ar- other remedies penal in addition to all cumulative and other gues damages for the not that the awarded provided by law.” ties remedies duplicative, NHA not but rather are duplicative damages specifically counte- Legislature’s regard to the efforts to With proper. nanced the- statute and therefore law, alter the we have common stated: agree presents separate I NHA that the law, repugnant The if not common injured may party cause of action to which State, Constitution of this continues as Thus, avail or herself. the real issue himself law of State unless it is altered or presented party may whether such be is VIII, changed by Legislature. Article duplicative under awarded Section 21 of the Constitution of West NHA. 2, 1, 1, Virginia; Chapter Article Section

Syllabus Virginia. Point 7 of Harless Nat’l v. First Code of West Fairmont, 673, Bank 169 289 W.Va. 331, 3, Syl. Seagraves Legg, Pt. v. 147 W.Va. (1982) states: S.E.2d 692 (1962). regard 127 S.E.2d 605 With to such recognized It generally that there can be law is alteration: “‘The common not to be only recovery one for one statute, changed by construed altered or as wrong injury. recovery Double dam- to do so legislative plainly unless intent ages permitted; is not law does Lilly, v. 130 W.Va. manifested.’ Shifflette permit single a double satisfaction for a (1947) 297, 4, Syl. [43 ].” 289 Pt. Sea S.E.2d may injury. plaintiff A not recover dam- 331, graves Legg, v. ages simply injury twice the same added). (1962) Further, (emphasis “[i]f 605 legal he has two because theories. Legislature or supersede intends to alter added). law, (emphasis Grego clearly must do so See also Sewell v. the common it ry, n. 371 State ex Van equivocation.” 588 S.E.2d 85 without rel. W.Va. (1988) (“The course, Appellants, Nguyen Berger, n. 4 would v. W.Va. added); (emphasis not be entitled to recover twice the same see S.E.2d injury presented type singular personal Dorothy Doug it measure or of dam a different las, naturally, gives variety personal petitioners' rise to by the violation of occasioned injury damages, pre-death pain suffering NHA; rather, i.e. argued respondent merely that damages pursuant Syllabus McDavid Point 6 of language permitted by it was the NHA to U.S., damages, duplicative recover discussed more Wrongful those outlined our fully infra. respondent argue Death Act. At no time did McDermitt, also Thomas v. 232 W.Va. permitting Rather than a blind acceptance (2013). 751 S.E.2d 264 of import” terms, the “literal of these as urged by respondent, the foregoing requires regard interpretation to our With of stat- this Court to construe the “cumulative and law, purport utes which to alter the common ... in addition to” language in a manner this Court has stated: which does the least violence to the common “[sjtatutes long-standing It is a maxim that law. question There can be no that West derogation of the common law are strict- 16-5C-15(d) Virginia § Code utterly is silent James, ly construed.” Kellar v. 63 W.Va. as to whether language this intends to abro- (1907). 59 S.E. 939 leading As the gate the prohibition common law duplica- on commentator in statutory construction damages. that'extent, tive To our easelaw states: would dictate simply that we cannot construe impose Statutes which duties or burdens language Virginia of West Code 16-5C- rights or provide establish or benefits 15(d) permitting as duplicative damages be- which were recognized by not the com- Legislature cause the did plainly mani- frequently mon law have been held sub- fest its intent to do so. strict, restrictive, ject to or interpreta- tion. any Where there is doubt about Fortunately, only we need examine the their meaning or intent given are usage of language this elsewhere in our Code the effect which makes the least rather meaning, understand its demonstrating than change the most in the common that it purport does not to alter the common law. has, law at Legislature all. The in many Singer, Norman J. Statutory instances, Sutherland other right indicated that a or (6th Ed.2001). § Construction 61:1 at 217 remedy is “cumulative and in addition to” similarly that, This Court has concluded other provided remedies at law—these stat- interpreting when ambiguous statute gamut utes run the from causes of action for contrary law, to the common abandoned wells to bondholder suits.5 Each given statute must be a narrow construc- of these expressly provides statutes for a tion. Syllabus As we stated in action, Points 3 cause remedy relief or for the of. and 4 Thomas, of Bank Weston v. subject matter covered in the statute and (1914): 83 S.E. 985 notes that remedy provided therein is “cumulative” “in addition to” all derogation Statutes other the com- and/or However, NHA, remedies. unlike the mon law are only allowed effect language is often by followed clearly extent additional lan- indicated the terms guage clarifying further Nothing used. can statute’s be added otherwise “cumulative and ... language in addition to” by necessary than implication arising simply means remedy provided by that the from such terms. particular statute is not the exclusive construction, 4. The rule of requiring remedy may and that an brought action be given effect to be to all the terms used particular under that any statute oth- and/or statute, in a possible, if is satisfied existing er example, law. For West assignment substantial, to them of a 22-10-ll(a) (1994) § Code provides: limited, though oper- function or field of ation. It require does not allowance to purpose It is the provide of this article to them, scope operation coextensive additional and cumulative remedies ad- with import. their literal dress abandoned wells in this State and Phillips Larry’s Inc., Pharmacy, Drive-In nothing herein abridge contained shall or 484, 491-92, rights 927- alter action or remedies now or (2007) added). (emphasis existing, any provisions nor shall hereafter (2002) (remov- tions); §§ 5. See W. Va.Code 37-13-7 (duty pay 8-18-21 for sewer graves); (1996) (cumula- 61-3E-2 service); (1994) (water al/transfer pollution); 22-11-27 16- penalties tive explosives); criminal for use of 36- 5N-15(1997) (residential facilities); care 16-5D- estates); (disposition 2-13 46A-6C-12 (2003) (assisted homes). living (1991) (actions against organiza- credit service in addition to hereby declared to be article, virtue of any act done or in this right, reme- other article, estopping the and cumulative construed by the com- accorded State, dy prohibition health officers or municipalities, public State, and rights to of this of their mon law or statutes in the exercise persons any shall be con- pollution nothing contained herein or to abate nuisance suppress any abrogate impair recover or existing, deny, or to hereafter strued to now or statutory right, or common law damages. such remedy prohibition. or added). plainly Perhaps more (emphasis worded where. the “cumulative and tory in addition to” means West having tional plainly the guage is not stated, our own have ed damages: (emphasis (1937) by As demonstrated We other is cumulative to the Consumer tee any holder of out No eating acted other any other something different language permits any Virginia Code rejected respondent’s therefor, remedy explanatory exhausting and without provides, in recognize that N.J.S.A. 56:8-2.13 evidence that statutes remedy and remedy conferred West Rather, establishments slightly Code, other law. added).6 import of the “cumulative P.L.1979, remedy, but each unique. language. conferred is intended refunding Virginia Code utilizing this exact each of differently, but language is part: by particular Fraud Act ... The fact § may be exercised with- c. 347 as a recovery in addition to 16-5C-15(d) its provides: in addition to” statu- than its by Legislature intend- bonds, these statutes frequent fact, by to be exclusive this article argument not included in that this addi- regard to statutory lan- such dealing with other states or § usage supplement duplicative article or 13-2A-15 trus- any language illustrate usage in and ... remedy by every upon else- any en- no 49 ly: Massachusetts Gardens, [Heller Blair, which was not tional tort and 358 the common law or relief’ tive statutes. this enactment and addition same ed at stantive However, In court has N.E.2d 482 comes unlawful certain 93A was intended to bault, [ [383], Prospect Street any to sanction [376 many A.2d 473 [ 1149 recovery for the Mass. Adv. economic loss. in N.J.S.A. 56:8-19 supra, — other Inc., ]. conduct is v. Silverbranch Mass. rights to, cases, we never See also Linthicum (N.J.Super.Ct.App.1988). and not an ^[379] Supreme Court found similar appropriate legal or 227 (relief conclude that 141 (Ct.App.1976)]. by making conduct unlawful duplicative damages for the 621] previously unlawful contract under ánother said, however, that where e. 93A creates N.J.Super. Sh. Tenants Ass’n v. Mass. N.J.Super. already unlawful or be under e. 93A is (1979)2661, 2663, authorize a alternative any prior statute.” phrase, wrong Constr. See Neveroski v. - 382 remedies”). were not intend- 449, N.E.2d 1065 ^[365] under language “in [381], v. Archam Corp.,] Id. “new sub statute, equitable 547 A.2d to, addition duplica- at Sheva under tradi - both This 382, The “in c. Mishara, 386 Mass. v. prohibitions McGrath rights, The remedies (1982); 1215, 1222 see also Calimlim N.E.2d provisions of this act accorded any abate rights suppress nuisances or to § Similarly, Code 22-11-27 West existing, provides: or to re- pollution or hereafter now damages. provide purpose cover this article to It is the (1994) (provid- § to abate additional and remedies 22-12-13 cumulative See also W. Va.Code pollution the nothing waters of the State ing provides and cumulative "additional article abridge or alter herein contained shall "abridge[] alter[] or which do not remedies” rights actipn or hereafter or remedies now rights remedies now or hereafter of action or article, existing, any provisions in this nor shall (stating § existing”); 39-1A-7 W. Va.Code article, any of this or act done virtue entitled, pro- part, cumulative” "article article State, municipali- estopping the construed as ties, proving notarial method vides "an additional officers, ripari- public persons health acts.)” otherwise, exercise of their an owners or in the Center, Inc., Foreign v. Car 392 Mass. claim that legislature provided. has Of (1984) (“[W]here 467 N.E.2d course, plaintiff not duplica- recover may injury same acts cause the same under more money tive damages. Wirig, 461 N.W.2d theory than one ... duplicative damage re- at 379. such, will permitted”). coveries not be As it County Abraham v. Hennepin, plain although injured seems party (Minn.2002) N.W.2d 346-47 (emphasis may NHA, avail himself of the in addition to added); see also Pitman Lightfoot, law, provided other causes of action at he S.W.2d (Tex.Ct.App.1996) (“[JJury may duplicate recovery his thereunder.7 findings multiple on recovery theories of [do Supreme Minnesota explained Court automatically support not] duplicate awards permitting distinction between concurrent or damages. actual As we already have not improperly cumulative causes of action and ed, although party may a any assert and all permitting duplicative damages, as follows: causes may another, of action it have Ordinarily, provides unless a statute that it is limited only recovery one of dam exclusive, remedy its is party a should not ages”); Hopkins Pennsylvania v. Power & prevented be bringing from concurrent Co., Light 136, 137(E.D.Pa.1953) 112 F.Supp. See, e.g., claims. Wirig Kinney v. Shoe (“The action under the Wrongful Death State Corp., (Minn.1990) 461 N.W.2d 377-79 of 1855 and the action under the Survival Act (holding both statutory that cause of action of 1937 are separate and distinct actions for sexual harassment and common law whose remedies are cumulative and not alter cause of action battery for can be main native, however, being, it ‘important that the though tained even both claims arise from actions, two the one under the death acts and Crown, facts); operative same set of Cox v. statute, the other under the survival should CoCo,Inc., (Minn. 544 N.W.2d 496-97 overlap not duplication result in a of dam App.1996) (allowing claim retaliatory for ages thereby compel the tort feasor to discharge under both the Whistleblower pay more than the maximum damage caused MOSHA); Act and by Humphrey State negligent his (citing act.’” Pezzulli v. Co., (Minn. Baillon 503 N.W.2d D’Ambrosia, 344 Pa. 26 A.2d App.1993) (rejecting argument that attor (1942))). ney provisions fee of Minn.Stat. eh. 117 are such, exclusive As recovering despite method of attorney fact that I cannot fees in proceedings majority’s eminent domain subscribe to the summary be dismiss- provisions cause al those do million expressly NHA award $1.5 because of provide matter, that its exclusive method of “confusion” about the I believe it recovering attorney fees in plain eminent do that such award must be vacated proceedings). main It is not for this because duplicative court it is damages other deny plaintiff a right pursue Although awarded this case.8 this was the fact, respondent’s 7. appears Respondent counsel alternatively argued to have before this precisely position articulated below: $1.5 Court that the million awarded for violation underlying gave [T]he conduct that rise to that duplicative of the NHA was not because it was give multiple could rise to causes of action. “injury” Dorothy Douglas and therefore specifically says you bring The statute can represented damages only, an award of McDavid Nursing you bring Home Act can also wrongful whereas the death verdict consisted of other remedies and causes of action as [sic] damages only those items set forth in our duplicate damages. law. You cannot We Act, Wrongful § Death W. Va.Code 55-7-6. Like agree all on that but there is no where and majority, disagree I that the verdict form and authority says you bring there is no that cannot First, plainly instructions bear that out. all of negligence a common law claim in addition to jury outlining instructions the various causes Nursing Home Act and that the conduct has simply "injury” Doug- of action refer to Mrs. long to be different. That is not—as as. the Secondly, damages pecu- las. McDavid are not damages duplicative, are not that is absolute- claims, liar to NHA i.e. the NHA delineates no ly authority proposition. is no for that —there recoverable; particular category damages give It’s the same conduct but it can rise to a party may personal injury recover the same dam- right you’re right, violation of a then there’s a prima that would otherwise be give facia available to them evidence that it can rise to a negligence negligence cause of action under a mere can- cause of action. Final- duplicative. not be ly, McDavid are not a stand-alone long- Supreme Court’s States appeal, the United presented issue primary majority’s damages jurisprudence, dodge standing punitive it. The majority chose to argu- dignify any entity these , precedent, much as how can refusal to so but its own ments, rather, expected on the vacate the award be doing business in West but it is too confused basis that ostensible “order behavior”? [its] them constitutes issues to address these case, recognizes majority In this shirking judicial duty to of its unprecedented improper claims to permitted the trial court presented. There is a the issues resolve rather than presented to the but in' the room that large pink elephant trial, simply reduces remanding for a new Accordingly, inso- ignore. chose to majority per- according to its own jury’s verdict herein, I concur. far as stated have been what the verdict should ceptions of conclusions. any legal basis for its without Justice, LOUGHRY, dissenting: far to vacate an majority goes so majority at surprised that the I am not damages simply because million in entire $1.5 shockingly result-oriented tempts to hide its “nature and not to understand the it claims seventy-two page tome. Unfor analysis in a Further, majori- purpose” of the award. vote tunately majority, the fractured for the compensable ty the 7:1 upholds spotlight on the glaring casts a of this Court ratio, concluding it is constitu- reasoning employed startlingly misguided tionally permissible, despite the substantial Day O’Connor throughout. Justice Sandra process deprivation its excessiveness due “[ijndeed, point of ... the law the wrote that the verdict form sub- represents. Because their general-is to allow citizens to order in jury contained non-viable mitted to the legitimate no A State can have behavior. action, clarity any lacked sense of causes of deliberately making the law so interest review, the permitting and because or order arbitrary will be unable to avoid that citizens clearly fell outside punitive damages award solely upon or whim.” punishment based bias acceptable by recognized as of what has been Haslip, 499 U.S. Mut. Ins. Co. v. Pacific Life Court, States as well as the United 111 S.Ct. 113 L.Ed.2d Court, have reversed the Supreme I would J., (O’Connor, dissenting). question, Without court and remanded decision of the circuit majority are on and whims of the the biases Accordingly, I dissent. for a new trial. analysis. boldly tortured display full its in this case underlying The circumstances majority plainly usurps the the so When undeniably tragic. Given that this ease are Virginia juries, afforded to West discretion jury, unquestionably to a which was fried judgments for substituting policy its own Douglas’s death rested liability for Ms. found theirs, that how can citizen be confident defendants, I will not rehash the with the jury peers rather fate rests in a of their their second-guess I and its conclusion. Further evidence members of this Court? than three respect jury’s for the delib- more, disregards only have the utmost Court not when this said, by merely category wrongful I troubled the verdict form’s That am a claim— death damages. clarity clear: As McDavid itself makes award of McDavid dam- lack of on the act, Va.Code, clearly ages, entitled. wrongful to which the Estate was death W. 55- Under the [1992], may jury’s dam- problem presented a verdict include this verdict form is 7-6 ages suffering pain en- only sepa- for the decedent’s respondent included a need have injury time the time of and the dured between damages, jury as the line item for such rate death, injury resulted in death but where the award, improperly tied that was instructed did not institute an action for the decedent personal- claim, particular as the a such in isolation to injury prior his or her death. To petitioners the had to suffer NHA claim. Just as suffering, damages pain there for consequences providing a verdict form of not the pain be of conscious and suffer- must evidence separate calculation have allowed a which would prior ing death. Where of the decedent punitives, it seems the so of each defendant’s instantaneous, where there is death is or no consequences for respondent suffer like should consciously per- that the decedent evidence provide proposed verdict form their failure to suffering, damages pain pain and no for ceived clearly provided separate would have which suffering are allowed. damages. for McDavid line 6, McDavid, Syl. Pt.

IM therefore, address, purposes for of this with any clarity, erations “unable to opinion, aceept separate its conclusions as surrounding issues” one of the claims. This end, my opinion I true. To note that revealing merely statement underscores the regarding way the verdict is in no a reflec- simply obvious: we cannot know what monetary upon placed tion value to be jury amount the intended to award as dam- life, Douglas’s family’s my grief, Ms. her given drafting this matter the inartful feelings reprehensi- personal regarding the only what can viewed as an abominable bility proven the defendants’ conduct. Specifically, verdict form. majority can- Rather, I ap- ani constrained the faithful jury not know whether intended to award and, governing plication rules of law million in damages $11.5 majority, unlike refuse to succumb injuries pre-death and wrongful death attempt haphazard jury’s to intuit the inten- Douglas, simply Mrs. but divided this amount damages. tions on respective between presented line items Flawed Form Verdict on the verdict flawed form. This is not Although agree majority’s I with the con- jury situation where has made a demon- that the clusion million award for breach $5 strable mistakenly calculation error or even fiduciary duty was erroneous as inasmuch duplicative damages,3 awarded such that this such a cause of action does not lie in ease Court could remit verdict with confidence and that million award for violation $1.5 legal errors have been corrected (“NHA”) Nursing Home Act was er- preserving jury’s while discretion ror,1 simply vacating damages awards Rather, damages. ease, awarding in this improper legal tied to these of re- theories unspecified awarded various sums for covery merely compounds the error and ef- conduct, caused the defendants’ fectively sitting post- results in this Court but was to attribute those forced jurors. verdict Because the form verdict legally deficient causes of action due to the action, contained non-viable causes of confusing and erroneous verdict form. which were identical those And, yet, problems the with this verdict sought wrongful death/neg- under the viable form do there. not end The verdict form ligence theory,2 summarily one cannot dis- damages obfuscated a critical element of and damages card those along awards with the permitted jury to make the a direct award to legal doing erroneous theories without seri- wrongful Although death beneficiaries. jury’s ous the disservice verdict. This is apparent respondents damages that perhaps majority’s most from claim the awards the telling fiduciary duty statement that “the form and for breach of verdict and violation lucidity” lacking instructions are so in that it represented the NHA McDavid4 conscious regard, agree whole-heartedly Douglas’s I 1. In that with er since Mrs. death was the culmina- event, analysis majority’s injury Justice Workman’s single the mis- tion of a i.e. there was but issue, reasoning however, placed This, resulting as to this forth in injury as set one in death. error; her concurrence. jury by precipitate was not a rather it was design respondents’ the of the verdict form and jury 2. The was instructed on four theories of position damages on the recoverable under each Act, recovery: Nursing violation of the Home argument theory. fully This illustrates the fiduciary duty, negligence, breach of non-medical point simply jury cannot know whether the —we negligence. separately and medical It was then aggregate $11.5 intended to award an million damages types on the instructed various it compensatory damages (erroneously) in ifor it damages, wrongful could award: McDavid death differing damages theory perceived legal for each damages, punitive damages. and Rather than presented theory erroneously each since was tied itemizing types damages these the verdict on damages separate to a award in the flawed ver- instructed, jury form to track what the was the dict form. permitted jury verdict form the non- to award specific "damages” for three different theories. U.S., 4.Syl. Pt. McDavid v. theories, any Violation one of the four howev- (2003) ("Under wrongful S.E.2d 226 death er, recovery provides for same dam- exact Va.Code, act, [1992], jury’s W. 55-7-6 verdict See, infra, as other theories. note 3. damages may pain include for the decedent’s and course, suffering injury correctly between the time of as endured Of Justice Workman con- death, cludes, damages injury all three where the awards time of resulted made jury duplicative matter were one anoth- did death but the decedent not institute an action (“A (Minn.Ct.App.1992) jury- N.W.2d suffering damages, all of pain and by giv- error reversible trial court commits for non-medical (including those instructions contradictory instruc- inconsistent and ing various theo- negligence) on the and medical case, In this a material issue.... tions on to award jury recovery instructed ries damages on court’s instructions the trial Dorothy Douglas injury damages for special damages portion of defendants, making proximately caused and confus- were inconsistent verdict form indistinguishable from damages those the in- because ing_We conclude that con- Damages for damages. wrongful death inconsistent damages were on structions suffering merely an ele- are pain and scious contradictory, a new trial on wrong- under a damages recoverable ment of omitted). (internal citation required.”) is claim; form on the verdict nowhere ful death designated line item plainly Ashley, 607 F.2d was there a Hall v. See also Moreover, pro- (8th Cm.1979) respondents trial based damages. (remanding for new such jury par- appears the “[ajlthough the' notion that it support for fact that vide no on limit- ... overall specifically wrong, the a constitutional causes of action found ticular and con- inconsistent to “death” of the verdict is “injury” opposed form ed to it difficult to determine clearly fusing on and makes jury instructed was intended.”); actually Potter v. jury presume could from which one what that issue Corp., 388 N.W.2d Bean & those items American Grain the now-vacated awards.under (“Based all this noted, (Minn.Ct.App.1986) on damages. As were for McDavid confusion, this court deter- potential jury to award permitted the verdict form injustice be done would mines that a manifest Carolyn Doug- directly to “Tom trial.”); Conger v. a new buyer if were denied Doug- Dorothy Estate of las” rather than the Inc., Vending, Queen City & Food our unmistakably erroneous under las— (ordering (Mo.Ct.App.1979) S.W.2d wrongful death statute. “confusing, form was verdict new trial where short, matter form in this the verdict erroneous”). misleading and only way to mess. The was an inscrutable arbitrarily away majority hew For a new trial to remand for correct this error is improperly damages that were chunks majority’s dis- Contrary to the damages. on legal theories erroneous tied to these remanded previously has position, this Court mishandling gross constitutes a first instance by a eases where the verdict occasioned given the num- point, At this of this verdict. con- instructions that were verdict form and legal permeate quality of errors ber and In a case cited fusing and inconsistent. form, majority engaging this verdict Rufus, 207 W.Va. majority Lively — legally appropri- guesswork to a absolute 662, 436, 445, 671 533 S.E.2d —we verdict, having an ounce of heard ate without reasons, for similar reversed and remanded to sit as a It is not for this Court evidence. stating that: damage reductively carve super-jury discretion circuit court abused its [T]he attempting to whit- process of in the awards interrogatory jury submitting to the Legal errors should away legal error. tle with and contradicto that was inconsistent resolved, addressed, and this case have been instructions, ry to the law and the damages under trial on remanded for a new Furthermore, we find otherwise obtuse. legally sup- law as to proper instruction of Ingram See this to be a reversible error. thereby per- recovery, portable theories (Tenn. Earthman, 611, 641 v. 993 S.W.2d proper award of jury to make a mitting a (“Reversal ... required Ct.App.1998) is uncertainty. damages free from confusing form is special when the verdict Damages Punitive instructions.”), trial court’s or inconsistent with the sub- 986, 120 presumptuous denied, contrast to the In stark 528 U.S. t. cer regarding the (1999); judgment of its own Janice stitution L.Ed.2d 362 S.Ct. 145 dam- compensatory Co., amount of appropriate R.R. v. Duluth & Northeastern suffering pain and be evidence of conscious personal injury prior To must his or her death. to death.”). prior suffering, of the decedent pain there majority ages, the has left untouched evil intent” Douglas’s to cause Mrs. death or jury’s plainly punitive 7:1 unconstitutional acted with “malevolence.” Id. compensable damages ratio that led to an $80 case, In the majority instant ig has ratio, maintaining million award. nored its own admonition first established in majority utterly disregarded ju- has its own ratio, most, TXO that a 5:1 appropriate at is risprudence dangerously flouted the only “compensatory when the damages are Supreme United States Court’s instructions very large[.]” ... [not] This refusal to ac constitutionality as to puni- of excessive knowledge the substantial nature of the com respect tive awards. With to the constitu- pensatory damages award is particularly tionally passable punitive ratio of compen- egregious light of the United States Su satory damages, this Court has held: preme Court’s similar regarding directives The outer limit of the ratio of the constitutionally permissive puni ratio of compensatory damages damage tive awards. In State Farm Mutual eases in which the defendant has acted Company Automobile Insurance Camp negligence with extreme or wanton disre- bell, 538 U.S. 123 S.Ct. gard but with no actual intention to cause (2003), L.Ed.2d Supreme Court ad compensatory harm and in which monished: possess “While States discretion negligible very are neither large nor imposition over the damages, it is However, roughly 5 to 1. when the defen- well established that there procedural intention, dant has acted with actual evil and substantive constitutional limitations on higher per much ratios are not se unconsti- these awards. The Due Process Clause of tutional. the Fourteenth prohibits Amendment the im Syl. Pt. Corp. TXO Production v. Alli position grossly arbitrary excessive or Corp., ance Resources punishments 416, 123 on a tortfeasor.” Id. at added). (emphasis S.E.2d 870 Fur (citations omitted). S.Ct. 1513. In that re ther, Sheetz, Inc., in Vandevender v. gard, the State Farm Court stated that. (1997), compensatory damages “[w]hen are substan this Court exceeding clarified that the 5:1 tial, ratio, then a lesser perhaps only equal ratio appropriate established in TXO was compensatory damages, can reach out only when a defendant was shown to have process ermost limit of the guarantee.” due “intentionally malevolently committed acts added). (emphasis Id. at 123 S.Ct. 1513 specifically, knew to be harmful.” More such, As it is clear that the United States the Vandevender Court stated that Supreme sanctioned, most, Court has at a 1:1 Only in those cases where the defendant ratio for compensatory cases where the dam actually can be shown to have intended to Quite are substantial. tellingly, the Su cause harm' is the punitives ratio of preme Court characterized the million $1 compensatories permitted higher to climb compensatory award in State Farm —a mere “rais[ing] suspicious judicial eye- without one-fifth of the reduced dam Simply brow.” ... put, legally bad or ages in the at case bar —as “substantial com corporate policy incorrect equiv- is not the pensatory damages.” mean-spirited, alent evil intent cause harm. Supreme recently The Court more reaf 604, Id. at 490 S.E.2d at (emphasis 691 add- engaged firmed the 1:1 ratio and particu in a ed) (citations omitted). majority larly has instructive discussion of the national failed identify even an iota of evidence landscape punitive damages on in Exxon suggesting petitioners’ corporate Baker, 471, Shipping Co. v. 554 U.S. 128 policy-makers possessed “mean-spirited, 2605, 171 (2008).5 a S.Ct. L.Ed.2d 570 In Exx- Shipping 5. While the Exxon Shipping Court stated that the the discussion in Exxon to maritime law, pursuant only misguided case following was decided to maritime rath- cases is for the reasons: process, er than First, constitutional due there is no Supreme reasoning Court’s in Exxon question punitive damages that its discussion of Shipping broadly applicable princi- rested on made little to no reference to ples, unique maritime consider- not on considerations to maritime commentator, law, limiting ations. As noted one expressed and the concerns it about "the 104 reduced 1:1 light in of State Farm’s arising ratio from a class action Shipping, on benchmark, ease it has disaster, but in the instant Supreme Court Valdez

Exxon 7:1. blithely enlarge the ratio to opted punitive dollar billion reviewed $5 majority, courts have most other favor of a sub-class Unlike Exxon in against levied appropriately re damages. The heeded this admonition seeking punitive plaintiffs of damage to a 1:1 ratio punitive punitive awards on duced that research pointed out Court damages deemed “by compensatory were nationally indicates that where damage trends “substantial,” frequently although the eases punitive to ratio of the median most accounts than the million $5 than sums far less remained less involved compensatory awards has here. See 497-98, (citing award at issue compensatory 2605 128 S.Ct. Id. at 1:1.” Serv., Inc., 674 F.3d Parcel median ratios Jones v. United reporting multiple studies — (10th denied, added). Cir.2012), 0.67:1) 1187, Recog cert. (emphasis 1207 0.62:1 seems, -, 151 it is the S.Ct. 184 L.Ed.2d problem, real U.S. nizing that “the awards,” punitive damages from unpredictability (reducing punitive stark damages that the research punitive-to-actual on to state slightly the Court went over 3:1 and a plaintiffs ratio of 2.9:1 part revealed a mean 1:1 ratio in because also ratio to 13.81, demonstrating substantial); $630,307 were damages standard deviation actual Co., “outlier existence and seriousness 305 Fed. v. Medical Protective Jurinko Cir.2008) (3rd “dwarf the cor punitives in which the (reducing cases” 13.1:1 Appx. 499-500, Id. at responding compensatories.” part in because of “substantial ratio to 1:1 “eliminating un Noting that award”); Music, 2605. 128 S.Ct. Bridgeport compensatory outlying punitive awards” is predictable Pub., F.3d v. Justin Combs Inc. found that the most judicial obligation, (“Given it (6th Cir.2007) large compensato “peg[] punitive to promising option was to $366,939 ... a ratio of ry damages award of damages using a ratio or maxi compensatory process all due can closer to 1:1 or 2:1 is 2605.6 multiple.” Id. at 128 S.Ct. mum case.”); Bach v. First Union tolerate ratio, “a 1:1 concluded that The Court then (6th Bank, Cir. 486 F.3d 156-57 Nat. award, a fair the median which is above 2007) (finding plaintiff that where had recov “a median ratio of upper limit” and that $400,000 damages, a compensatory ered damages of about punitive compensatory punitive dam ratio of 1:1 which probably marks the line near 0.65:1 boundary of what the ages was “the outer largely one should cases like this permit”); Boerner v. Brown Constitution will 513, 128 S.Ct. 2605. grouped.” Id. at Co., Tobacco 394 F.3d & Williamson Cir.2005) (8th com (holding that “substantial noting was decid- It that State Farm bears of over million pensatory $4 award” proclaimed 5:1 year’s ten this Court ed after company required tobacco entered non-intentional or outer limit ratio for damages to be reduced to ratio of punitive only has this Court malicious conduct. Not 1:1); ConAgra approximately Williams duty to revisit this recognize its failed terminology: process punitive damages to echo due unpredictability” ion seems stark repeatedly phrases plainly were not limited to the mari- used words and awards The Court Second, "unfairness”; the data from which time context. '.'unpredictability”; "com- like included drew its limit of a 1:1 ratio the Court "commonly justice”; held mon sense cases, just all kinds of notionfs] of law." Third, repeatedly Court maritime cases. (3d Litig. & Fed. Cts. 45.54 4 Bus. ed.2011). Com. a "common law described remedy,” "responsibility with for which lies judge-made law in the Court as a source of noted, however, startling The Court further Fourth, although .... absence of statute.” by majori- permitted to the 7:1 ratio contrast saying expressly stopping that the 1:1 short of rely judice, on ty that "States in the case sub equally process presumption applies due ratios, variety adopted multiplier have review, quoted twice its statement the Court monetary ranging 1:1” or "absolute from 5:1 to that, "[wjhen compensatory dam- State Fann S.Ct. 2605. More- caps[.]” over, "[wjhile U.S. at ratio, substantial, per- ages a are then lesser majority with a of the States a slim damages; only equal compensatory can haps to 3:1, apply adopted a others see fit to ratio have process limit of the due reach the outermost guarantee.” 510, one[.j” Id. at 128 S.Ct. lower Indeed, language opin-

105 (8th Cir.2004) Co., 790, reprehensible 799 Poultry guaran- 378 F.3d most defendant is (concluding “large compensatory by that award” teed both the West and United $600,000 in racial claim “is a harassment Supreme States Constitutions. The Court punitive damages money” reducing lot of unequivocally has held have a courts ratio); 1:1 from 10:1 to Burton v. Zwicker duty punitive to normalize awards because of Associates, PSC, 2013 WL 5652646 implication “[t]he of unfairness eccen- that an (E.D.Ky.2013) (reducing ratio to 1:1 due to high trically punitive verdict carries in a $350,000 compensatory “substantial” dam system commonly whose held notion law ages); Perkins v. Federal Fruit & Produce a dealing rests on sense of fairness with (D.Colo.2013) Co., Inc., 2013 2112425 WL Shipping, one another.” Exxon U.S. at 554 observing (reducing ratio and that “[a]l- 502, S.Ct. Shipping 128 2605. The Exxon though punitive damages compared explained necessity Perkins’ Court further digit compensatory damages single to are a “promoting systemic consistency” re- with ratio, ratio, high single digit 6.5 it is a to gard to awards: especially given Supreme Court’s and penalty reasonably predicta- [A] should be Tenth recent to Circuit’s moves enforce much severity, ble in its so that even Justice smaller, 1:1, ratios”); Shukla even v. Shar Holmes’s “bad man” can look with ahead (reduc ma, (E.D.N.Y.2012) 2012 481796 WL ability some to know what the stakes are 1:1); ing ratio 2.5:1 Zakre from v. Nord choosing one course action or anoth- Girozentrale, deutsche Landesbank WL counterparts er. And when the bad man’s (S.D.N.Y. Feb.8, 2008) (reduc at *7 time, up penalty turn from time award, ing punitive damages where ratio was they ought scheme face to threaten them 2:1, compensatory damages because were probability with fair suffering a in like million); Slip-N-Slide $1.65 substantial — degree damage. when wreak like Records, Records, LLC, v. TVT Inc. No. 05- 502-03, (citations Id. at 128 S.Ct. 2605 omit- 21113-CIV, *30 WL at ted). action; “Law is to be defined a rule of (S.D.Fla. 2007) (affirming punitive Oct. rule, but can how that be a which is little award, which been had reduced known, less fixed?” The Federalist No. Court, reflect 1:1 ratio the District be (James Madison). [compensatory cause the “substantial dam “[experience Justice Brandéis stated that mitigates against award of $2.3 million] should teach us to most on guard our punitive damages materially a award that protect liberty government’s pur- when the amount”); exceeds that same iS Thomas v. beneficent_The poses greatest dan- Fin., Inc., F.Supp.2d tar gers liberty lurk in insidious encroachment (S.D.N.Y.2007) (“[T]he Court believes the zeal, well-meaning men but without [3:1 to ratio this ease is 4:1] excessive U.S., understanding.” Olmstead v. 277 U.S. very because Thomas was awarded sub 48 S.Ct. 72 L.Ed. 944 in compensatory damages stantial amount (Brandéis, J., dissenting). majori- While the [$443,500],making punitive award equal ty guise disposition has reached its under the compensatory damage ap award more citizens, protecting our vulnerable it most propriate.”); Phelps see also v. Louisville upholds fatally nonetheless flawed verdict Co., (not (Ky.2003) Water 103 S.W.3d corrupted legal been has substantial ing relatively “the compen small amount of By reducing presumptuously errors. satory damages ap in calculating awarded” corrupted judg- verdict reflect its own ratio); propriate Chrysler Corp., Clark v. ment, pro- majority I submit that has (6th Cir.2006) (reducing F.3d 594 ratio from path with misguided ceeded down littered in light overly large” 13:1 to 2:1 of “not vestiges system. legal of our these For approximately reasons, respectfully I dissent. $235,000). judicial eye A watchful over ver- important.

dicts is puni- Judicial review of concept simply required by

tive awards is

of fundamental fairness —fairness which even NHA notes error similar form, inadequacies non-exclusivity ing contained verdict form in verdict (here- apportion Liability. jury’s inability relation Professional Act Medical “MPLA”) case, compensatory damages inafter of this under the NHA facts fiduciary non-viability duty between health-care related and non-health- of a breach of However, herein, analysis finding care related claims. after claim and its however, damages. separately, this inadequate verdict form fails to I write support compensatory damages express my disagreement with staunch panel precise participant equally type 2. This was not a in the also been confused as to the Justice case, having disquali- egregious required which properly decided the Perrine conduct war- myself fied to the involvement in the case due finding punitive damages. rant a my former firm and its law client.

Notes

result would obtain notes majority without “[ejlaims looking decisions, positively silly. related to business proper such as budgeting staffing, by An jury’s overview of the verdict and the entities that do qualify as Health Care respective necessary claims is ato full under- Providers under the simply MPLA do not standing misguided majority’s of how statutory fall within that Majori- scheme.” analysis Respondent is. asserted the follow- ty op. 763 S.E.2d at 91. ing claims which jury: were submitted to the negligence, medical negligence, non-medical majority The proceeds then to the NHA Act, Nursing violation of the Home Citing claim. wording “confusion” with the fiduciary duty. breach of In his First form, of the majority verdict simply Complaint, respondent Amended made alle- throws out million in $1.5 awarded gations inadequate medical care and non- by jury without single so much as a allegations medical which fall into three cate- legal authority citation to permitting it to do gories inadequate budgeting, staffing, and majority so. The complexity notes the of the reporting. allegations The contained in the case, “vague[ness]” jury of the instruc- complaint and the evidence adduced at trial form, “inability tions and verdict and its as to portions the non-medical of respon- identify purpose the nature and NHA case, dent’s “ordinary” negligence, i.e. viola- vacating award” before the award. The ma- NHA, tion of the fiduciary breach of jority NHA, analysis undertakes no duty, purposes was for all intents and identi- presented the evidence in support of that cal and centered around inadequate bud- claim, type or the recoverable for geting staffing at the Nursing Heartland violation of the NHA Even cursory the most Home.2 analysis alleged of the claims and evidence presented quickly returned a verdict would have favor of revealed that respondent presented following support on the the evidence claims and of both the separately awarded designated general negligence medical and non-medical dam- claims it 1) ages for each upheld cause of action: was the Nursing same as that which formed Home Act violation in the amount of the basis of the NHA $1.5 award. More to the 2) million; fiduciary duty breach of point, in the it would have revealed that the meas- Although 3.Twenty percent nature of the negligence $5 awarded million murky, for the NHA violation is at best what is represented negligence award which medical case, very clear is that under the facts of this post-verdict pursuant cap was reduced on duplicative, explained infra. damages pursuant non-economic to the MPLA. summary 2. A of this evidence is contained in pages majority opinion. 27-28 of the

Case Details

Case Name: Manor Care Inc. v. Tom Douglas

Court Name: West Virginia Supreme Court

Date Published: Jun 18, 2014

Citation: 763 S.E.2d 73

Docket Number: 13-0470

Court Abbreviation: W. Va.