Doris RACHER, Co-Personal Representative of the Estate of Eryetha Mayberry, Deceased; Sandra Cisper, Co-Personal Representative of the Estate of Eryetha Mayberry, Deceased; Earlene Adkisson, Co-Personal Representative of the Estate of Eryetha Mayberry, Deceased, Plaintiffs-Appellees, v. WESTLAKE NURSING HOME LIMITED PARTNERSHIP, d/b/a Quail Creek Nursing and Rehabilitation Center; Westlake Management Company, a Texas corporation, Defendants-Appellants, and Ron Lusk, an individual, Defendant.
No. 16-6011
United States Court of Appeals, Tenth Circuit.
September 28, 2017
871 F.3d 1152
Before BRISCOE, EBEL and PHILLIPS, Circuit Judges.
III.
REVERSED AND REMANDED.
Kevin M. Coffey (Paul A. Harris with him on the brief), of Harris & Coffey, PLLC, Oklahoma City, Oklahoma, for Plaintiffs-Appellees.
BRISCOE, Circuit Judge.
Eryetha Mayberry was abused by two certified nursing assistants while in the care of Quail Creek Nursing Home, operated by Westlake Nursing Home Limited Partnership and Westlake Management Company (collectively “Quail Creek” or “Westlake“). Mrs. Mayberry‘s three daughters (collectively “plaintiffs“) filed this diversity action against Westlake under Oklahoma law for negligence, negligence per se, and intentional infliction of emotional distress. After a trial, the jury found for plaintiffs and against Westlake on the claims of negligence and negligence per se, and made a special finding that Westlake had acted with reckless disregard for the rights of others. The jury awarded $1.2 million in compensatory damages and $10,000 in punitive damages. Westlake appeals. Exercising jurisdiction pursuant to
I
Eryetha Mayberry lived on her own until she was 90. Aplt. App. vol. III, at 703. Sometime in 2008, Mrs. Mayberry‘s three daughters moved her into Quail Creek Nursing Home. See id. at 704, 719. Mrs. Mayberry suffered from severe arthritis that made it very difficult for her to move and required her to use a wheelchair. Id. at 704; Aplee. Supp. App. vol. I, at 5. She also had difficulty communicating due to dementia. Aplt. App. vol. III, at 705.
Caroline Kaseke began working at Quail Creek as a Certified Nursing Assistant (CNA) in March of 2007. Aplee. Supp. App. vol. V, at 115. Lucy Gakunga began working at Quail Creek in November of 2008, also as a CNA. Aplee. Supp. App. vol. IV, at 55. These two were Mrs. Mayberry‘s caretakers the entire time Mrs.
Doris Racher, one of Mrs. Mayberry‘s daughters, testified at trial that the family began to notice bruising on her mother‘s hands and arms soon after Mrs. Mayberry moved into Quail Creek. Aplt. App. vol. III, at 706-07. Mrs. Racher further testified that Quail Creek was unable to explain the bruising and did not seem properly concerned by the family‘s repeated complaints. Id. at 705-07. In approximately February of 2012, Mrs. Mayberry began crying out for help and telling family members that someone was hurting her mouth. Aplee. Supp. App. vol. I, at 5. Mrs. Racher also testified that her mother began refusing to take showers even though “she was always really fanatic about cleanliness.” Aplt. App. vol. III, at 709.
Sometime in 2011, Mrs. Mayberry‘s family began noticing items missing from her room so they placed a hidden, motion-activated video camera facing Mrs. Mayberry‘s bed. Id. at 710; Aplee. Supp. App. vol. I, at 5. The camera initially was not recording properly, but Mrs. Racher replaced the SIM card and the family was eventually able to view some videos recorded by the camera. Aplt. App. vol. III, at 710-12. The camera may have started recording correctly around December of 2011. Aplee. Supp. App. vol. I, at 5.
Five video clips from the camera were played for the jury. Aplt. App. vol. III, at 715. Although the time line is disputed, these clips were likely recorded between February and early April of 2012. See id. at 720-24. These clips showed two nursing home employees, later identified as Gakunga and Kaseke, interacting with Mrs. Mayberry. Aplee. Supp. App. vol. I, at 5. The videos have no audio, but show Gakunga slapping Mrs. Mayberry in the face with latex gloves, wadding up the gloves, stuffing them in Mrs. Mayberry‘s mouth, and forcibly holding them there as Mrs. Mayberry attempts to push Gakunga‘s hand away. Id. Kaseke is seen in the videos watching this take place. Id. The videos then show Gakunga and Kaseke roughly lifting Mrs. Mayberry from her wheelchair into bed and Gakunga pushing on Mrs. Mayberry‘s face in what appears to be an attempt to make her lie down. Id. at 5-6. One clip shows Gakunga pointing her finger at Mrs. Mayberry and apparently scolding her or perhaps threatening her. Aplt. App. vol. III, at 751-52. Finally, the video clips show Gakunga “performing some sort of compressions with both hands to [Mrs. Mayberry‘s] torso.” Aplee. Supp. App. vol. I, at 6. Plaintiffs assert that this action was intended to force Mrs. Mayberry to empty her bladder so the caretakers would not have to change her diaper as often. Aplee. Br. at 3. Quail Creek and the caretakers denied any knowledge of this practice, but acknowledged that there was no medical justification for the action. Aplt.
On April 16, 2012, Mrs. Mayberry‘s family brought the video to the attention of Quail Creek Nursing Home. Aplee. Supp. App. vol. I, at 6. Quail Creek responded by calling the police and isolating Gakunga and Kaseke in separate rooms, where they were monitored to ensure they could not further endanger the home‘s residents. Id.; Aplt. App. vol. IV, at 882. Gakunga and Kaseke were arrested and charged with caretaker abuse pursuant to
All three daughters testified that Mrs. Mayberry became withdrawn during her stay at Quail Creek and they alleged that the abuse caused Mrs. Mayberry‘s physical condition to decline. Aplee. Supp. App. vol. I, at 4; Aplt. App. vol. III, at 717; Aplt. App. vol. IV, at 1052-54, 1042-43. Mrs. Mayberry died in July of 2012, just three months after the abuse was discovered. Aplt. App. vol. III, at 717.
In addition to the video evidence, plaintiffs presented evidence at trial of two other incidents, both taking place on April 4, 2012. First, Ariel Pierce, a nursing student, testified that, on April 4, 2012, she witnessed Gakunga strike Mrs. Mayberry on the forehead and then put Mrs. Mayberry in a cold shower. Aplt. App. vol. IV, at 842-43, 848. Pierce reported this incident to Quail Creek. Id. at 843. Second, another nursing student, Christina Gilbert, testified that she witnessed Kaseke spray an unnamed resident in the face with cold water so violently that the resident‘s dentures fell out onto the shower floor. Id. at 851-52. This incident also took place on April 4, 2012, and Gilbert reported it to Quail Creek that day. Id. at 852.
At trial, Quail Creek Executive Director Ginger Barsotti and Director of Nursing Susan Easterling testified that the conduct on the video was abuse and “utterly intolerable.” Aplt. App. vol. III, at 737-38; Aplt. App. vol. IV, at 1028-29. Easterling also testified that the intentional acts of Gakunga and Kaseke caused emotional distress to Mrs. Mayberry. Id. at 1029. In addition to these admissions that the abuse occurred and was perpetrated by Quail Creek employees, there was ample evidence that Quail Creek was directly negligent in failing to investigate and report incidents of abuse. Quail Creek Administrator Amanda Penrod testified that she could not locate any record of an investigation relating to either of the April 4, 2012 incidents reported by the nursing students and further admitted that the Oklahoma State Department of Health had no record of the incidents being reported as required by Oklahoma law. Id. at 864-65. She testified that, at the time, she did not know these incidents were reported and so had no personal knowledge of any investigation, but stated that an investigation would have been completed by Easterling. Id. at 865. Easterling then testified that she did not know why no record of the investigation could be located and she could not recall any details of the investigation, though she insisted that she had completed one because she claimed that she or Penrod “investigated all allegations” and took them “very seriously.” Id. at 1019-28. Easterling could not explain why Quail Creek was unable to locate a Care Plan for Mrs. Mayberry even though such a plan is required by law. Id. at 1001-03. Further, she could not explain why no effort was made to find out why Mrs. Mayberry began calling out for help. Id. at 1011-16. Easterling also struggled to find information in Mrs. Mayberry‘s chart, was unable to explain the organization of the chart or where certain types of care information
Gakunga testified (by deposition read at trial) that she had not done anything wrong and that she treated Mrs. Mayberry the same every day. Id. at 960-62. She refused to watch the video of the abuse and so was unable to comment on her actions in it. Id. at 960. When asked whether she treated Mrs. Mayberry any differently either before or during the incident, Gakunga responded: “Before that incident, no. During that, there is a video, so that means I did it. I don‘t remember exactly when or what shift or what the time was.” Id. Similarly, when asked if she had ever done anything improper, she stated:
I mean I worked everyday, I would say everyday, and have never ever done something wrong. If I did it, maybe I wasn‘t even thinking about it. Like as the slapping of the gloves, that‘s wrong, and I know it is wrong, and the video shows it, so I am wrong. I did it and I‘m wrong. But, as I said, it is about remembering the exact time, so it is wrong at the end of the day.
Id. at 975.
Gakunga was unable to describe Mrs. Mayberry‘s physical condition or the proper way to care for her. See id. at 965-66. She also was unable to describe any of her actions that would constitute abuse of Mrs. Mayberry other than repeating what had been told to her by her criminal defense counsel. See id. at 960-64. When asked what Quail Creek had taught her about abuse, Gakunga responded “I don‘t know.” Id. at 970. When asked to describe an act she would consider abusive, her response was “[t]he fact that the glove and the—I don‘t know what to call that.” Id. The defense attorney asked if she meant “[u]sing your hands up and down on the face?” and she responded “[o]n the side that I was, yes.” Id.
The jury was instructed as to negligence, negligence per se, and intentional infliction of emotional distress, including an instruction on vicarious liability. Aplt. App. vol. II, at 457-64. The jury was further instructed as to the possibility of punitive damages if the defendant acted with reckless disregard for the rights of others. Id. at 467. At the conclusion of the evidence in the first phase of the trial, the jury was sent to deliberate on the issues of liability, reckless disregard, and the amount of compensatory damages. The jury found that Westlake was liable on theories of negligence and negligence per se, that Westlake acted with reckless disregard for the rights of others, and that plaintiffs were entitled to compensatory damages in the sum of $1.2 million. Id. at 475-76. Following that verdict, counsel was given the opportunity to present their arguments as to punitive damages and the jury received an additional instruction. After a second opportunity to deliberate, the jury returned a verdict for punitive damages in the amount of $10,000. Id. at 477. Following the jury verdict, Westlake moved to alter or amend the judgment and moved for remittitur or alternatively a new trial, both pursuant to
II
Westlake now appeals and raises four issues: (1) whether the district court erred by failing to reduce compensatory damages to the statutory cap of $350,000; (2) whether the district court erred by failing to reduce the allegedly excessive compensatory damage award of $1.2 million or, in the alternative, to grant a new trial; (3) whether the district court erred by allowing allegedly improper closing argument regarding punitive damages during the
We review the district court‘s decisions on each of these issues for abuse of discretion. Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 434-35 (1996) (motion to alter or amend a judgment); Hill v. J.B. Hunt Transp., Inc., 815 F.3d 651, 668 (10th Cir. 2016) (same); Whittenburg v. Werner Enters. Inc., 561 F.3d 1122, 1127 (10th Cir. 2009) (motion for a new trial based on an allegedly prejudicial closing argument); Sanjuan v. IBP, Inc., 160 F.3d 1291, 1296 (10th Cir. 1998) (motion for a new trial based on the allegedly erroneous admission of evidence).
To obtain a reversal for the allegedly erroneous admission of evidence or closing argument, an appellant also must make a showing of prejudice. Even if an argument was “improper, a judgment will not be disturbed unless it clearly appears that the challenged remarks influenced the verdict.” Lambert v. Midwest City Mem‘l Hosp. Auth., 671 F.2d 372, 375 (10th Cir. 1982). Similarly, the court may set aside a jury verdict due to erroneously admitted evidence only if it reasonably concludes that a trial without that evidence would have had a contrary result. Sanjuan, 160 F.3d at 1296.
Statutory Damage Cap
In a civil action arising from a claimed bodily injury, Oklahoma law caps noneconomic damages at $350,000 unless special findings are made. See
Neither party mentioned Oklahoma‘s statutory limitation on noneconomic damages at any point before the jury rendered its verdict. Westlake first raised the issue in its motion to alter or amend the judgment, filed twenty-eight days after judgment was entered in the case and more than a month after the trial concluded. Each party now argues that the other waived its rights by failing to raise the statute in a timely manner. Specifically, Westlake argues that, as a matter of Oklahoma substantive law, the statutory cap is “mandatory” and plaintiffs “have not secured the right to exceed the cap on noneconomic damages” because they failed to invoke the statute and satisfy its requirements. Aplt. Br. at 15-16. In contrast, plaintiffs argue that, as a matter of federal procedural law, the damage cap provides an affirmative defense that Westlake waived by not timely asserting it. Aplee.
It is undisputed that a state‘s statutory limit on damages is substantive law that federal courts sitting in diversity must apply. See Gasperini, 518 U.S. at 428. The question before us now is whether the classification of that substantive right as either an affirmative defense that defendants must assert, or a pleading requirement plaintiffs must satisfy, is also a matter of substantive state law. We have not previously addressed this question. See Bentley v. Cleveland Cty. Bd. of Cty. Comm‘rs, 41 F.3d 600, 604 (10th Cir. 1994) (concluding that a damage cap in the Oklahoma Governmental Tort Claims Act,
In diversity cases, the Erie doctrine instructs that federal courts must apply state substantive law and federal procedural law. Gasperini, 518 U.S. at 427; James River Ins. Co. v. Rapid Funding, LLC, 658 F.3d 1207, 1216-17 (10th Cir. 2011). If a federal rule of civil procedure answers the question in dispute, that rule governs our decision so long as it does not “exceed[] statutory authorization or Congress‘s rulemaking power.” Shady Grove, 559 U.S. at 398; Hanna v. Plumer, 380 U.S. 460, 471 (1965). When faced with a choice between a state law and an allegedly conflicting federal rule, we follow the framework described by the Supreme Court in Shady Grove, as laid out by Justice Stevens in his concurring opinion. James River, 658 F.3d at 1217 (citing Garman v. Campbell Cnty. Sch. Dist. No. 1, 630 F.3d 977, 983 n.6 (10th Cir. 2010)). First, the court must decide “whether the scope of the federal rule is ‘sufficiently broad’ to ‘control the issue’ before the court, thereby leaving no room for the operation” of seemingly conflicting state law. Shady Grove, 559 U.S. at 421 (Stevens, J., concurring) (quoting Burlington N. R.R. v. Woods, 480 U.S. 1, 4-5 (1987)); James River, 658 F.3d at 1218. When conducting this analysis, the Federal Rules should be given their plain meaning.2
Walker v. Armco Steel Corp., 446 U.S. 740, 750 n.9 (1980). There is a conflict only if there is a “direct collision” between federal and state law—one that is “unavoidable.” Id. at 749-50 (first quoting Hanna, 380 U.S. at 472; then quoting id. at 470). If the state and federal rules “can exist side by side, . . . each controlling its own intended sphere of coverage,” there is no conflict. Id. at 752; Scottsdale Ins. Co. v. Tolliver, 636 F.3d 1273, 1277 (10th Cir. 2011). If there is a direct collision between the state law and the federal rule, the court must next determine whether the federal rule is valid. Shady Grove, 559 U.S. at 422; James River, 658 F.3d at 1218. If it is, that rule governs the dispute and there is no need to “wade into Erie‘s murky waters.” Shady Grove, 559 U.S. at 398 (majority opinion). If there is no direct collision, however, there is no need to consider whether the federal rule is valid, and instead, the analysis must proceed under Erie. See Walker, 446 U.S. at 749-50, 752-53, 752 n.14. Here we conclude, first under Shady Grove, that there is no conflict between the Oklahoma statute and the Federal Rules, and second, under Erie, that whether a statute provides an affirmative defense or a pleading requirement is a question of substantive state law.
Because the parties allege the Oklahoma statute conflicts with the federal rules, we begin our analysis under Shady Grove, and our first inquiry is whether a federal rule of civil procedure directly conflicts with the state statute. Under federal law, the Supreme Court has looked to
Where then, as here, a federal procedural rule governs the question at issue, that rule controls—“notwithstanding” state law—so long as the federal rule is a valid exercise of authority given to the Supreme Court to enact federal rules of
However, Congress expressly provided in the Enabling Act that procedural rules adopted by the Supreme Court must “not abridge, enlarge or modify a substantive right.”
With Justice Stevens‘s admonitions in mind, we turn to the Oklahoma statute at issue in this case and, as discussed in greater detail below, conclude that
Further, when state law creates a cause of action, it also defines the scope of that cause of action. Ragan v. Merchs. Transfer & Warehouse Co., 337 U.S. 530, 533 (1949).
In this case, the Oklahoma statute creates a substantive right to limit damages in certain cases alleging bodily injury. Because that right is created by state law, state law also governs the measure of that right and the burden that must be satisfied to assert it. Whether the statute operates as an affirmative defense, granting defendants a substantive right to claim its protection, or whether it creates a heightened pleading requirement for plaintiffs, thereby increasing their burden for stating a substantive claim over the specified amount, is an integral part of the substantive right created by the statute. Thus, this is a question of substantive state law. To hold otherwise could result in the inequitable administration of the law in state and federal courts.
We thus turn to Oklahoma substantive law. Oklahoma courts have not yet had the opportunity to directly address whether
We therefore begin with the text of the statute. In all civil actions arising from a claimed bodily injury, Oklahoma law limits noneconomic compensatory damages to $350,000.4
Oklahoma follows the canon that “a statute should not be construed any more broadly or given any greater effect than its terms require.” Edmondson v. Pearce, 2004 OK 23, ¶ 79 n.48, 91 P.3d 605, 640 n.48 (Okla. 2004) (quoting Huffman v. Okla. Coca-Cola Bottling Co., 1955 OK 76, ¶ 18, 281 P.2d 436, 440 (Okla. 1955)). It follows that, absent express legislative intent to the contrary, the Oklahoma Supreme Court would interpret this statute to follow the ordinary practice regarding whether a statute provides an affirmative defense or creates a pleading requirement. The ordinary practice would be governed by the Oklahoma Pleading Code.
Section 2008 of the Oklahoma Pleading Code is derived from and closely tracks the requirements of
This conclusion is bolstered by three Oklahoma Supreme Court cases. First, the Oklahoma Supreme Court referred to a statutory privilege exemption, found in
Westlake‘s argument that the language of the Oklahoma statute is “mandatory” is unavailing under Oklahoma law. Although the statute provides that the amount of compensation awarded “shall not exceed” the statutory limit, it also provides that “there shall be no limit” on the compensation awarded in a number of enumerated circumstances. See
Because
Finally, it is well established that failure to assert an affirmative defense results in waiver of that defense. Bentley, 41 F.3d at 604. Here, Westlake failed to raise the statutory damage cap in a responsive pleading, or at any point before the trial was completed. Thus, Westlake waived this defense and may not now assert it.
Excessive Damages
Westlake argues that the compensatory damages awarded by the jury were excessive and that the district court erred by declining to either reduce the award or grant a new trial. Aplt. App. vol. III, at 664. They ask for remittitur to $100,000. The district court denied this motion because it concluded that “there was substantial evidence in the record to support the jury‘s award.” Id. at 665-66. We agree.
When state substantive law governs a claim for relief, state law also provides the appropriate standard for a district court‘s decision as to whether the verdict was excessive. Hill, 815 F.3d at 667 (quoting Gasperini, 518 U.S. at 419). Oklahoma law provides:
The general rule is that the issue of damages in a personal injury action is left to the jury after hearing all the evidence. A verdict of a jury cannot be set aside as excessive unless it strikes mankind, at first blush, as beyond all measure unreasonable and outrageous and such as manifestly shows it was actuated by passion, prejudice, partiality or corruption.
After carefully considering the entire trial record and viewing the evidence in the light most favorable to plaintiffs, we are convinced that the damages awarded were not excessive. Based on the evidence presented at trial, the jury could reasonably have concluded that Mrs. Mayberry was abused on a daily basis from the time she moved into the facility in 2008, until the day her family revealed the video tape of the abuse to the facility, April 16, 2012. The jury also could have found that the abuse caused emotional distress that was significant enough to have contributed to Mrs. Mayberry‘s death. An award of $1.2 million is not “beyond all measure unreasonable and outrageous” as compensation for three and a half years of daily torment. The district court did not abuse its discretion for so finding.
Improper Closing Argument
Westlake argues that the district court erred by allowing counsel for plaintiffs to make arguments that “invited an award based on consideration of deterrent and punitive rather than compensatory factors.” Aplt. Br. at 40 (emphasis in original). Westlake moved for a new trial on this basis. The district court denied the motion. Although we agree that portions of the argument were improper at the time they were presented, Westlake has failed to show that the argument led the jury to return a verdict based on passion or prejudice rather than the evidence presented at trial.
Whether a trial court provided an adequate remedy for an improper closing argument is a procedural issue controlled by federal law. Lambert, 671 F.2d at 375. Courts must ensure “that every litigation be fairly and impartially conducted and that verdicts of juries be rendered only on the issues made by the pleadings and the evidence.” N.Y. Cent. R.R. v. Johnson, 279 U.S. 310, 318 (1929). Litigants are entitled “to a verdict uninfluenced by the appeals of counsel to passion or prejudice.” Id.; see also Minshall v. McGraw Hill Broad. Co., 323 F.3d 1273, 1285 (10th Cir. 2003). But courts must exercise “great caution” in setting aside a jury‘s verdict due to an improper argument. Lambert, 671 F.2d at 375. Even if some statements exceeded the bounds of permissible argument, “a judgment will not be disturbed unless it clearly appears that the challenged remarks influenced the verdict.” Id.
We must be “mindful that ‘[t]he trial judge is in the best position to determine’ the prejudicial effect of improper arguments, and thus whether a new trial is warranted.” Whittenburg, 561 F.3d at 1127 (quoting Ketchum v. Nall, 425 F.2d 242, 244 (10th Cir. 1970)). “[C]losing remarks often occupy only a fraction of what the jurors hear” and “[r]equiring a new trial is . . . a serious and costly remedy for all involved.” Id. at 1127-28. “Because the presiding trial judge is present in the courtroom throughout the proceedings, he or she is uniquely positioned to assess the prejudicial effect of an improper argument in the context of the overall trial, as well as to fashion an appropriately tailored remedy.” Id. at 1128. Thus, the district court‘s
We recognize the potential prejudice posed by arguments that invite the jury to award damages based on punishment or deterrence when only compensatory damages are at issue. See Spulak v. K Mart Corp., 894 F.2+d 1150, 1155-56 (10th Cir. 1990); Caudle v. District of Columbia, 707 F.3d 354, 361 (D.C. Cir. 2013). But such arguments are appropriate when the law and the evidence place the issue of punitive damages before the jury. See Ramsey v. Culpepper, 738 F.2d 1092, 1100 (10th Cir. 1984); Vanskike v. ACF Indus., Inc., 665 F.2d 188, 209-210 (8th Cir. 1981). In this case, it is undisputed that punitive damages were available as a remedy. The claimed error is based only upon the timing of the closing argument.
Oklahoma substantive law provides for punitive damages as a remedy and delineates a two-stage process for the award of any such damages.
Not all errors require reversal. In this case, the district court concluded that “the statements of counsel referenced by Westlake defendants in their motion did not have such a prejudicial effect to warrant a new trial” because “counsel‘s statements would not have led the jury to base its actual damages award on deterrent and/or punitive purposes.” Aplt. App. at 666. We agree. The jury was properly presented with instructions on the availability of punitive damages, including the procedure for the two-step process. Westlake has failed to show that counsel‘s argument, although ill-timed, impermissibly invited the jury to award punitive damages during the first phase rather than the second.
In prior cases, this court has considered three factors when assessing the prejudicial effect of an improper closing argument: whether the improper comments were “‘minor aberrations’ made in passing,” whether the district court took “any specific curative action,” and whether the jury‘s findings, “while not beyond the bounds of rationality, suggest that counsel‘s comments had a prejudicial effect.” Whittenburg, 561 F.3d at 1131-32. In this
First, the improper statements were “minor aberrations made in passing,” not “the heart and soul” of the argument. See Whittenburg, 561 F.3d at 1131. The challenged argument is the one plaintiffs’ counsel delivered in rebuttal closing during the first stage of trial. Prior to this argument, plaintiffs’ counsel presented an argument that reviewed the evidence presented in the trial. Aplt. App. vol. IV, at 1116-18. This argument included discussion of the employment records of both Gakunga and Kaseke, their repeated reprimands for sleeping on the job, abandoning shifts early, and refusing to complete assigned patient care tasks, and reviewed the testimony of the nursing students who witnessed abuse perpetrated by these two caretakers. Id. Counsel also discussed the nursing home‘s decision to retain these caretakers in spite of the indications that patients were being harmed while in their care. Id. Counsel concluded this first argument by asking the jury to “consider what it will take to fairly and fully compensate Mrs. Mayberry‘s estate for the abuse that she suffered at the hands of this nursing home” and then again played for the jury the video recordings that showed nursing home employees abusing Mrs. Mayberry. Id. After Westlake‘s closing argument, plaintiffs’ counsel delivered the rebuttal argument that is now challenged. In this argument, counsel told the jury: “You can change the way that nursing homes train their employees. You can make nursing homes understand that it is vital to protect their residents from abuse.” Id. at 1134-37. Because it referred to all nursing homes, not just Quail Creek, this argument was ill-timed. It should have been presented during the second stage of trial, not the first. However, counsel went on to argue that Quail Creek was liable because it did not protect its residents from abuse by failing to properly train employees to recognize and prevent abuse, and by failing to enforce policies and procedures that would have protected Mrs. Mayberry. Id. Counsel then explicitly referred to the multistage process required for awarding punitive damages. He argued:
The first step here is to render a verdict against this nursing home. Render a verdict against this nursing home for the abuse that Ms. Mayberry suffered at the hands of their employees. Included in your verdict, you are going to have to place a value on what happened to Ms. Mayberry. It must be fair, it must fully compensate Ms. Mayberry‘s estate for the physical pain and the mental suffering that she endured. You must place a value on that pain, that humiliation, and the mental scarring that occurred to Ms. Mayberry.
Id. In this portion of the argument, counsel asked for nothing more than full compensation for Mrs. Mayberry‘s injuries and, in so doing, reminded the jury that, at step one, only compensatory damages were at issue. Counsel then addressed each of the other two questions presented to the jury during stage one, and argued that the jury should find both that Quail Creek “recklessly disregarded the rights of Mrs. Mayberry” and that Quail Creek “intentionally and with malice abused Mrs. Mayberry.” Id. Counsel then concluded his argument. See id. Although this argument included remarks that asked the jury to award punitive damages, counsel did not ask the jury to do so during the first stage of trial rather than the second. In fact, counsel explicitly reminded jurors that step one was to compensate Mrs. Mayberry for her pain and suffering at the hands of the nursing home employees. When considered as a whole, the argument would not have led a reasonable juror to award punitive damages during the first phase of trial rather than waiting until the second
Second, although the district court overruled Westlake‘s objection to the argument,7 it adequately instructed the jury regarding when and how punitive damages could be awarded. See Whittenburg, 561 F.3d at 1131. Before the first stage of deliberations, the jury was instructed as to both compensatory and punitive damages. With regard to compensatory damages, the jury was instructed that “[t]he damages you award must be fair compensation, no more and no less,” that “[i]n fixing the amount of compensatory damages, you may consider the following elements of injury and harm: (1) Mrs. Mayberry‘s physical pain and suffering, if any, and (2) Mrs. Mayberry‘s emotional and mental anguish, if any,” and that “you should be guided by dispassionate common sense. You must use sound discretion in fixing an award of damages, drawing reasonable inferences from the facts and evidence. You may not award damages based on sympathy, speculation, or guess work.” Aplt. App. vol. II, at 466. This instruction clearly explained to the jury the task presented. Further, with regard to punitive damages, the jury was instructed that “[i]f you find in favor of plaintiffs, and grant them actual damages, then you must also find by a separate verdict, whether the defendant acted in reckless disregard of the rights of others and/or acted intentionally and with malice towards others.” Id. at 467. This is an accurate representation of the findings the jury must make at stage one. Finally, the jury was instructed that “[i]f you find that the defendant acted in reckless disregard of the rights of others, or intentionally and with malice towards others, you may award punitive damages against the defendant in a later part of this trial.” Id. (emphasis added). Here the court again reminded jurors that punitive damages, although they might be awarded in phase two, were not to be awarded in phase one. In addition, the verdict form provided to the jury in stage one asked the jury to complete the following sentence, “We find the dollar amount of damages sustained by Plaintiffs is the sum of $__________.” Id. at 475-76 (emphasis added). By correctly asking the jury only for the full amount of compensatory damages, this form again reminded jurors that only compensatory damages were at issue in stage one of the trial. In light of the clear instructions explicitly delineating the questions before the jury in each stage of the proceedings, and the verdict form asking for only compensatory damages, we cannot say that the errant remarks during closing argument would have lead the jury to award punitive damages during the first stage rather than the second.
Third, the respective amounts awarded for compensatory damages and punitive damages do not suggest that the improper argument had a prejudicial effect. See Whittenburg, 561 F.3d at 1132. At stage one, the jury awarded $1.2 million in compensatory damages. As discussed above,
Taken together, these three factors indicate that the jury was not prejudiced by the poorly timed statements regarding the award of punitive damages. The jury was clearly instructed as to the correct procedure, and the size of the awards, when considered in the context of the evidence presented at trial, including the evidence regarding Westlake‘s financial condition, gives us little reason to conclude that the procedure was not followed. A new trial is not warranted in these circumstances.
Evidence of Other Incidents
Westlake argues that the district court erred by admitting evidence of another incident subject to a limiting instruction. Prior to trial, Westlake filed a motion in limine to exclude “any evidence regarding the allegation that Caroline Kaseke sprayed a resident in the face with a shower head or caused any other physical or mental harm to any residents at the Quail Creek Nursing and Rehabilitation Center (the ‘Nursing Home‘) on or about April 4, 2012 (the ‘April 4th Incident‘).” Aplt. App. vol. I, at 190-91. The district court denied Westlake‘s motion because “this evidence would be relevant, not unfairly prejudicial, and, therefore, admissible if the abuse at issue in this case occurred after the April 4, 2012 incident.” Aplt. App. vol. II, at 429. Westlake objected again when the evidence was admitted at trial and the district court overruled the objection, finding that
You have heard evidence of other alleged incidents at the nursing home. The evidence is disputed as to when the alleged abuse of Ms. Mayberry at issue in this case occurred. You may consider evidence of another alleged incident only if you find that the other alleged incident occurred prior to the alleged abuse of Ms. Mayberry. If you find that another alleged incident occurred after the alleged abuse of Ms. Mayberry, you cannot consider this alleged incident when deliberating and reaching your verdict in this case.
Aplt. App. vol. II, at 452.
We agree with the district court that this evidence is admissible to show notice if the incident took place before the abuse of Mrs. Mayberry, but not if it took place after. See Julander v. Ford Motor Co., 488 F.2d 839, 846 (10th Cir. 1973) (“Generally, where negligence is in issue, prior complaints to a defendant concerning an allegedly hazardous condition are admitted as being probative of the defendant‘s knowledge.” (emphasis in original)). Westlake claims, however, that the undisputed evidence established that the abuse to Mrs. Mayberry occurred no later than February 11, 2012, in which case the April 4, 2012 incident could not have provided notice to defendants and is not relevant. Aplt. App. vol. I, at 193; Aplt. Br. at 47-49. They further argue that any “probative value was substantially outweighed by the evidence‘s unfair prejudice, confusion of the issues, and potential to mislead the jury.” Id. at 49. We disagree.
First, the timing of the recording is disputed. Plaintiffs presented testimony that the length of time between when the video was recorded and when they presented it to the nursing home was less than ten days, which, if true, means it was recorded on or after April 6, 2012. Aplt. App. vol. III, at 723-24. Defendants attempted to present a handwritten note from Robyn Crandall, see Aplt. App. vol. V, at 1157-64, which, they argue, established that the video was recorded before February 11, 2012. No witness was able to testify as to the accuracy of this note. Witnesses for plaintiffs testified that they had never seen it before and that the information it contained was incorrect. Aplt. App. vol. III, at 723-24. Further, the language of the note itself is unclear and indicates uncertainty as to the dates. See Aplt. App. vol. V, at 1157-64. Most importantly, defendants failed to call Robyn Crandall as a witness, so the only evidence before the jury was that no witness could verify the information in the note—instead all witnesses denied its accuracy. See id. at 1122-23. Thus, there is a genuine issue as to the timing of the recording and the district court judge was correct to admit the evidence with the limiting instruction.
Second, even if the time line were clearly established, as defendants claim, the timing of the recording is entirely irrelevant to the evidentiary ruling at issue. The limiting instruction properly allowed the jury to consider the incidents if they took place before the alleged abuse of Mrs. Mayberry, not necessarily before the specific acts caught on video tape occurred. Even if it were undisputed that the abuse was recorded on video before April 4, 2012, there would still be a question of fact as to whether the abuse of Mrs. Mayberry was ongoing between April 4, 2012, and April 16, 2012, when the abusers were arrested. As discussed above, the evidence presented at trial would support a jury finding that it was.
Third, the evidence of other incidents is certainly unfavorable to Westlake, but nothing indicates that this prejudice is in
III
We affirm the district court‘s denial of Westlake‘s motion to alter or amend the judgment, as well as Westlake‘s motion for remittitur or alternatively for a new trial. The district court did not err by declining to reduce the compensatory damage award to the statutory cap of $350,000, or to reduce the compensatory damage award as excessive. We conclude that the error in allowing closing argument regarding punitive damages at stage one instead of stage two did not compromise the jury verdict in this case. Finally, the district court did not err in admitting evidence of other alleged incidents at Quail Creek subject to a limiting instruction. The judgment of the district court is affirmed.
MARY BECK BRISCOE
UNITED STATES CIRCUIT JUDGE
Notes
Except as provided in subsection C of this section, in any civil action arising from a claimed bodily injury, the amount of compensation which a trier of fact may award a plaintiff for noneconomic loss shall not exceed Three Hundred Fifty Thousand Dollars ($350,000.00), regardless of the number of parties against whom the action is brought or the number of actions brought.
Notwithstanding subsection B of this section, there shall be no limit on the amount of noneconomic damages which the trier of fact may award the plaintiff in a civil action arising from a claimed bodily injury resulting from negligence if the judge and jury finds, by clear and convincing evidence, that the defendant‘s acts or failures to act were: (1) In reckless disregard for the rights of others; (2) Grossly negligent; (3) Fraudulent; or (4) Intentional or with malice.