Manor Care Inc. v. Tom Douglas

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2014 Term FILED

June 18, 2014

released at 3:00 p.m.

RORY L. PERRY II, CLERK

No. 13-0470 SUPREME COURT OF APPEALS

OF WEST VIRGINIA

MANOR CARE, INC.; HCR MANOR CARE SERVICES, INC.;

HEALTH CARE AND RETIREMENT CORPORATION

OF AMERICA, LLC;

HEARTLAND EMPLOYMENT SERVICES, LLC;

JOHN DOES 1 THROUGH 10; AND

UNIDENTIFIED ENTITIES 1 THROUGH 10

(AS TO HEARTLAND OF CHARLESTON),

Defendants Below, Petitioners

V.

TOM DOUGLAS, INDIVIDUALLY,

AND ON BEHALF OF

THE ESTATE OF DOROTHY DOUGLAS,

Plaintiffs Below, Respondents

Appeal from the Circuit Court of Kanawha County

Honorable Paul Zakaib, Jr., Judge

Civil Action No. 10-C-952

AFFIRMED, IN PART; REVERSED, IN PART; AND REMANDED

Submitted: March 5, 2014

Filed: June 18, 2014

Benjamin L. Bailey James B. McHugh

Brian A. Glasser Michael J. Fuller, Jr.

Bailey & Glasser, LLP D. Bryant Chaffin

Charleston, West Virginia Amy J. Quezon

Attorneys for the Petitioners A. Lance Reins

McHugh Fuller Law Group, LLC

Thomas J. Hurney, Jr. Hattiesburgh, Mississippi

Alyssa E. Baute Paul T. Farrell, Jr.

Jackson Kelly PLLC Greene, Ketchum, Bailey, Farrell & Tweel

Charleston, West Virginia Huntington, West Virginia

Attorneys for Amici Curiae, Attorneys for the Respondents

The West Virginia Hospital Association

and The West Virginia Health Care Anthony J. Majestro

Association Powell & Majestro, PLLC

Charleston, West Virginia

Attorney for Amicus Curiae,

West Virginia Association for Justice

CHIEF JUSTICE DAVIS delivered the Opinion of the Court.

JUSTICE KETCHUM deeming himself disqualified, did not participate in the decision

of this case.

ALAN D. MOATS, JUDGE, sitting by temporary assignment.

JUSTICE WORKMAN concurs and reserves the right to file a concurring opinion.

JUSTICE BENJAMIN concurs in part and dissents in part and reserves the right to file

a separate opinion.

JUSTICE LOUGHRY dissents and reserves the right to file a dissenting opinion.

SYLLABUS BY THE COURT

1. “The West Virginia Medical Professional Liability Act, codified at

W. Va. Code § 55-7B-1 et seq., applies only to claims resulting from the death or injury of

a person for any tort or breach of contract based on health care services rendered, or which

should have been rendered, by a health care provider or health care facility to a patient. It

does not apply to other claims that may be contemporaneous to or related to the alleged act

of medical professional liability.” Syllabus point 3, Boggs v. Camden-Clark Memorial

Hospital Corp., 216 W. Va. 656, 609 S.E.2d 917 (2004).

2. “This Court’s opinion in Boggs v. Camden-Clark Memorial Hospital

Corp., 216 W. Va. 656, 609 S.E.2d 917 (2004), is clarified by recognizing that the West

Virginia Legislature’s definition of medical professional liability, found in West Virginia

Code § 55-7B-2(i) (2003) (Supp.2005), includes liability for damages resulting from the

death or injury of a person for any tort based upon health care services rendered or which

should have been rendered. To the extent that Boggs suggested otherwise, it is modified.”

Syllabus point 4,Gray v. Mena, 218 W. Va. 564, 625 S.E.2d 326 (2005).

3. While the applicability of the Medical Professional Liability Act, W. Va.

Code § 55-7B-1 et seq., is based upon the facts of a given case, the determination of whether

i

a particular cause of action is governed by the Act is a legal question to be decided by the

trial court.

4. “When this Court, or a trial court, reviews an award of punitive

damages, the court must first evaluate whether the conduct of the defendant toward the

plaintiff entitled the plaintiff to a punitive damage award under Mayer v. Frobe, 40 W. Va.

246, 22 S.E. 58 (1895), and its progeny. If a punitive damage award was justified, the court

must then examine the amount of the award pursuant to the aggravating and mitigating

criteria set out in Garnes v. Fleming Landfill, Inc., 186 W. Va. 656, 413 S.E.2d 897 (1991),

and the compensatory/punitive damage ratio established in TXO Production Corp. v. Alliance

Resources Corp., 187 W. Va. 457, 419 S.E.2d 870 (1992)[, aff’d, 509 U.S. 443, 113 S. Ct.

2711, 125 L. Ed. 2d 366 (1993)].” Syllabus point 6, Perrine v. E.I. du Pont de Nemours &

Co., 225 W. Va. 482, 694 S.E.2d 815 (2010).

5. “In actions of tort, where gross fraud, malice, oppression, or wanton,

willful, or reckless conduct or criminal indifference to civil obligations affecting the rights

of others appear, or where legislative enactment authorizes it, the jury may assess exemplary,

punitive, or vindictive damages; these terms being synonymous.” Syllabus point 4, Mayer

v. Frobe, 40 W. Va. 246, 22 S.E. 58 (1895).

ii

6. “When a trial or appellate court reviews an award of punitive damages

for excessiveness under Syllabus points 3 and 4 of Garnes v. Fleming Landfill, Inc., 186

W. Va. 656, 413 S.E.2d 897 (1991), the court should first determine whether the amount of

the punitive damages award is justified by aggravating evidence including, but not limited

to: (1) the reprehensibility of the defendant’s conduct; (2) whether the defendant profited

from the wrongful conduct; (3) the financial position of the defendant; (4) the

appropriateness of punitive damages to encourage fair and reasonable settlements when a

clear wrong has been committed; and (5) the cost of litigation to the plaintiff. The court

should then consider whether a reduction in the amount of the punitive damages should be

permitted due to mitigating evidence including, but not limited to: (1) whether the punitive

damages bear a reasonable relationship to the harm that is likely to occur and/or has occurred

as a result of the defendant’s conduct; (2) whether punitive damages bear a reasonable

relationship to compensatory damages; (3) the cost of litigation to the defendant; (4) any

criminal sanctions imposed on the defendant for his conduct; (5) any other civil actions

against the same defendant based upon the same conduct; (6) relevant information that was

not available to the jury because it was unduly prejudicial to the defendant; and (7) additional

relevant evidence.” Syllabus point 7, Perrine v. E.I. du Pont de Nemours & Co., 225 W. Va.

482, 694 S.E.2d 815 (2010).

7. “The outer limit of the ratio of punitive damages to compensatory

iii

damages in cases in which the defendant has acted with extreme negligence or wanton

disregard but with no actual intention to cause harm and in which compensatory damages are

neither negligible nor very large is roughly 5 to 1. However, when the defendant has acted

with actual evil intention, much higher ratios are not per se unconstitutional.” Syllabus point

15, TXO Production Corp. v. Alliance Resources Corp., 187 W. Va. 457, 419 S.E.2d 870

(1992), aff’d, 509 U.S. 443, 113 S. Ct. 2711, 125 L. Ed. 2d 366 (1993).

8. Whether the ratio of punitive damages to compensatory damages is

constitutional must be examined on a case-by-case basis.

9. “A punitive damages award that is not constitutionally excessive under

TXO Production Corp. v. Alliance Resources Corp., 187 W. Va. 457, 419 S.E.2d 870 (1992),

may nevertheless be reduced by a reviewing court when, in the discretion of the court, a

reduction is warranted by mitigating evidence.” Syllabus point 8, Perrine v. E.I. du Pont de

Nemours & Co., 225 W. Va. 482, 694 S.E.2d 815 (2010).

10. “When a court grants a remittitur, the plaintiff must be given the option

of either accepting the reduction in the verdict or electing a new trial.” Syllabus point 9,

Perrine v. E.I. du Pont de Nemours & Co., 225 W. Va. 482, 694 S.E.2d 815 (2010).

iv

Davis, Chief Justice:

This action against several corporate entities who operate Heartland Nursing

Home in Charleston, West Virginia (hereinafter collectively referred to as “MC

Companies”),1 involves claims of negligence; violations of the West Virginia Nursing Home

Act, W. Va. Code § 16-5C-1 et seq.; and breach of fiduciary duty, arising from injuries to and

the death of Ms. Dorothy Douglas, who had been a resident of Heartland Nursing Home.

MC Companies appeal the circuit court’s denial of their “Motion for Judgment as a Matter

of Law, or in the Alternative for a New Trial, or in the Further Alterative for Remittitur”

(hereinafter “motion for judgment as a matter of law”), entered following a jury trial that

resulted in an award of $11.5 million in compensatory damages and $80 million in punitive

damages. MC Companies raise several errors: (1) the verdict form disregarded the distinct

corporate forms of the defendants; (2) the verdict form improperly allowed the jury to award

damages to non-parties; (3) the circuit court erred in finding the Medical Professional

Liability Act (hereinafter “MPLA”) did not provide the exclusive remedy for the asserted

negligence claims; (4) the circuit court erred in concluding that the Nursing Home Act

(hereinafter “NHA”) claim is not governed by the MPLA; (5) the circuit court erred in

allowing a breach of fiduciary duty claim against a nursing home; and (6) the punitive

damages award was improper and excessive. We conclude, based upon the briefs submitted

1

The various companies are identified and described below in our recitation of

the factual and procedural history of this action. See infra Section I.

1

on appeal, oral arguments, and relevant law, that: (1) MC Companies waived the issue of

whether the verdict form disregarded the distinct corporate forms of the defendants; (2) the

verdict form did not allow the jury to award damages to non-parties; (3) the MPLA did not

provide the exclusive remedy for the asserted negligence claims; (4) the NHA claim is

governed by the MPLA and, due to a lack of evidence that the pre-suit requirements of the

MPLA were met, this claim is dismissed and the accompanying $1.5 million award is

vacated; (5) because the circuit court erred in recognizing a breach of fiduciary duty claim

against a nursing home, the claim is dismissed and the accompanying $5 million award is

vacated; (6) the punitive damages award is reduced proportionate to the reduction in

compensatory damages, and the reduced amount of punitive damges, which equals

approximately $32 million, passes constitutional muster. Based upon these conclusions, we

affirm, in part; reverse, in part; and remand this action to the circuit court for further

proceedings consistent with this opinion.2

2

This Court acknowledges the appearance of the following Amici Curiae: The

West Virginia Hospital Association and The West Virginia Health Care Association, who

filed a joint brief in support of MC Companies; and the West Virginia Association for

Justice, who filed a brief in support of Mr. Douglas. We express our appreciation for the

participation of these Amici Curiae, and we have considered their positions in our decision

of this case.

2

I.

FACTUAL AND PROCEDURAL HISTORY

On September 4, 2009, Dorothy Douglas (hereinafter “Ms. Douglas”) was

admitted to Heartland Nursing Home in Charleston, West Virginia. Although Ms. Douglas

was eighty-seven years old at the time of her admission to Heartland Nursing Home, and she

suffered from Alzheimer’s dementia, Parkinson’s Disease, and other health issues, she was,

nevertheless, able to walk with the use of a walker, able to recognize and communicate with

her family, well-nourished, and well-hydrated. After spending nineteen days in Heartland

Nursing Home, Ms. Douglas had become dehydrated, malnourished, bed ridden, and barely

responsive. In addition, she had fallen numerous times, sustained head trauma and bruises,

and suffered from sores in her mouth and throat that required the scraping away of dead

tissue and debris. Following her nineteen-day stay at Heartland Nursing Home, Ms. Douglas

was transferred to another nursing facility, then to Cabell Huntington Hospital,3 and

ultimately to a Hospice care facility where she passed away eighteen days after leaving

3

According to the record, when Ms. Douglas was admitted to Cabell

Huntington Hospital, she was suffering from severe dehydration and was totally

unresponsive. She was administered IV fluids, which restored her to a normal level of

hydration, but she remained largely unresponsive. The use of an NG tube temporarily, or a

PEG tube more permanently, to administer nourishment to Ms. Douglas was discussed with

her family. The family did not believe these treatments were something Ms. Douglas would

want; therefore, they declined these procedures. According to the testifying physician, an

NG tube is a nasogastric tube that goes down through the nose into the stomach. It can be

used only temporarily because it will cause the nasal passage to erode. A PEG tube is a

percutaneous endogastric tube which goes through the abdominal wall into the stomach.

3

Heartland Nursing Home. According to her treating physician at Cabell Huntington Hospital,

Ms. Douglas died as a result of severe dehydration.

Evidence presented at trial demonstrated that Heartland Nursing Home had

been chronically understaffed. There had been numerous complaints from residents and their

families, as well as by Heartland Nursing Home employees. At least one employee who

complained of understaffing was reprimanded for her complaint, and the complaint was

apparently removed from Heartland Nursing Home records. Additionally, and

notwithstanding attempts to conceal the understaffing, surveys by the West Virginia

Department of Health and Human Services documented Heartland Nursing Home’s

understaffing and improper records pertaining to staff that occurred prior to Ms. Douglas’

admission to that facility. Nevertheless, Heartland Nursing Home remained understaffed

and, as a result, Ms. Douglas did not survive the adverse effects of her stay there.

Ms. Douglas’ son, Tom Douglas, individually and on behalf of the estate of his

mother (hereinafter “Mr. Douglas”), filed suit against various corporate entities related to

Heartland: Manor Care, Inc.; HCR Manor Care Services, Inc.; Health Care and Retirement

Corporation of America, LLC; and Heartland Employment Services, LLC. Manor Care, Inc.,

4

is a holding company that owns the stock of the other named businesses.4 HCR Manor Care

Services, Inc., was the management company.5 Health Care and Retirement Corporation of

America, LLC, owned skilled nursing facilities and other health care facilities such as

assisted living and hospice facilities6; this corporate entity apparently also held the operating

licenses for Heartland Nursing Home and other nursing homes it owned.7 Heartland

Employment Services, LLC.,8 employed the workers, including administrators and regional

directors, who were then leased to Health Care and Retirement Corporation of America,

LLC.9

Mr. Douglas asserted causes of action including negligence under the MPLA,10

4

Kathryn S. Hoops, Vice-President, Director of Tax, Internal Audit, and Risk

Management for HCR Manor Care Services, Inc., testified by deposition that Manor Care,

Inc., owed and controlled its subsidiaries.

5

HCR Manor Care Services, Inc., is a subsidiary of Manor Care, Inc.

6

Health Care and Retirement Corporation of America, LLC, had no employees,

itself, but leased its employees from Heartland Employment Services, LLC.

7

In MC Companies’ motion for summary judgment, they described Health Care

and Retirement Corporation of America, LLC, as “the licensed nursing home operator that

operates the Heartland of Charleston facility,” and as “a subsidiary of Manor Care, Inc.”

8

Heartland Employment Services, LLC, also is a subsidiary of Manor Care, Inc.

9

Only two of these companies had employees: Heartland Employment Services,

LLC, and HCR Manor Care Services, Inc.

10

See W. Va. Code § 55-7B-1 et seq.

5

violations of the NHA,11 an alleged breach of fiduciary duty, and corporate negligence.

Following a ten-day trial, the jury returned a verdict in favor of Mr. Douglas in the amount

of $11.5 million in compensatory damages12 and $80 million in punitive damages. MC

Companies then filed a motion for judgment as a matter of law, which the circuit court

denied. This appeal followed.

II.

STANDARD OF REVIEW

MC Companies allege numerous errors in support of their appeal from the trial

court’s denial of their post-verdict motion for judgment as a matter of law. Specific

standards of review for some issues are set out in connection with the particular issues to

which they pertain. Generally, however, we are guided by the following principles: “The

appellate standard of review for an order granting or denying a renewed motion for a

judgment as a matter of law after trial pursuant to Rule 50(b) of the West Virginia Rules of

Civil Procedure [1998] is de novo.” Syl. pt. 1, Fredeking v. Tyler, 224 W. Va. 1, 680 S.E.2d

16 (2009). Moreover,

[w]hen this Court reviews a trial court’s order granting or

11

See W. Va. Code § 16-5C-1 et seq.

12

Specifically, the jury awarded $1.5 million for violations of the NHA

resulting in injuries to Ms. Douglas, $5 million for negligence resulting in Ms. Douglas’

death, 80% of which was which designated for ordinary negligence and 20% for medical

negligence, and $5 million for breach of fiduciary duty resulting in injuries to Ms. Douglas.

6

denying a renewed motion for judgment as a matter of law after

trial under Rule 50(b) of the West Virginia Rules of Civil

Procedure [1998], it is not the task of this Court to review the

facts to determine how it would have ruled on the evidence

presented. Instead, its task is to determine whether the evidence

was such that a reasonable trier of fact might have reached the

decision below. Thus, when considering a ruling on a renewed

motion for judgment as a matter of law after trial, the evidence

must be viewed in the light most favorable to the nonmoving

party.

Syl. pt. 2, id. With respect to the circuit court’s ruling on a motion for a new trial, our

general standard of review is stated thusly:

In reviewing challenges to findings and rulings made by

a circuit court, we apply a two-pronged deferential standard of

review. We review the rulings of the circuit court concerning a

new trial and its conclusion as to the existence of reversible

error under an abuse of discretion standard, and we review the

circuit court’s underlying factual findings under a clearly

erroneous standard. Questions of law are subject to a de novo

review.

Syl. pt. 3, State v. Vance, 207 W. Va. 640, 535 S.E.2d 484 (2000).

With appropriate consideration for these standards, we will address the issues

herein raised.

III.

DISCUSSION

MC Companies have raised numerous issues involving the verdict form, the

7

application of the MPLA to this action, the application of the NHA to this case, whether the

claim for breach of fiduciary duty is recognized in West Virginia, and the propriety of the

punitive damages awarded. We address each of these issues in turn.

A. Verdict Form

We address two errors asserted by MC Companies related to the verdict form:

(1) that it deprived them of individual determinations of punitive damages and (2) that it

enabled the jury to award damages to non-parties.13 Discussion of each of these assigned

errors is set out separately after a statement of the general standard for our review of these

issues.

1. Standard of Review. “Generally, this Court will apply an abuse of

discretion standard when reviewing a trial court’s decision regarding a verdict form.” Syl. pt.

4, Perrine v. E.I. du Pont de Nemours & Co., 225 W. Va. 482, 694 S.E.2d 815 (2010).

Likewise, “[a]s a general rule, a trial court has considerable discretion in determining

whether to give special verdicts and interrogatories to a jury unless it is mandated to do so

by statute.” Syl. pt. 8, Barefoot v. Sundale Nursing Home, 193 W. Va. 475, 457 S.E.2d 152

13

MC Companies also have argued that the verdict form allowed duplicative

damages. Because our resolution of other issues raised in this appeal results in the dismissal

of two of the causes of action, it is not necessary for us to address this issue. See infra

Section III.C, which dismisses Mr. Douglas’ Nursing Home Act claim, and Section III.D,

which dismisses Mr. Douglas’ claim for breach of fiduciary duty.

8

(1995).

“[T]he criterion for determining whether the discretion is abused

is whether the verdict form, together with any instruction

relating to it, allows the jury to render a verdict on the issues

framed consistent with the law, with the evidence, and with the

jury’s own convictions. See 9A Charles Allan Wright & Arthur

R. Miller, Federal Practice and Procedure: Civil 2d § 2508

(1995); Martin v. Gulf States Utilities Co., 344 F.2d 34 (5th Cir.

1965); and McDonnell v. Timmerman, 269 F.2d 54 (8th Cir.

1959).”

Williams v. Charleston Area Med. Ctr., Inc., 215 W. Va. 15, 19, 592 S.E.2d 794, 798 (2003)

(quoting Adkins v. Foster, 195 W. Va. 566, 572, 466 S.E.2d 417, 423 (1995) (per curiam)).

2. Separate Determination of Punitive Damages. Before this Court, MC

Companies assert that the verdict form disregarded the fact that they are distinct corporate

entities and deprived each of its right to a separate determination of punitive damages. They

complain that this action was brought against four separate corporations with individual

corporate identities and responsibilities, yet the verdict form improperly lumped them into

a single unit, i.e., “the defendants,” against whom the jury was asked to assess punitive

damages. MC Companies concede that they are related corporations, but claim that they

remain separate entities.

Mr. Douglas responds that, while MC Companies did object that they were

improperly grouped together for determining whether they would be subject to punitive

9

damages, they ultimately withdrew their request to avoid having a separate determination of

the amount of any punitive damages awarded. He additionally argues that MC Companies

waived the issue by failing to proffer an instruction informing the jury that it could determine

liability and allocate damages as to each defendant separately.

The facts pertinent to resolving this issue are that Mr. Douglas and MC

Companies each submitted their proposed jury verdict form to the circuit court. During the

jury charge conference, MC Companies objected to Mr. Douglas’ proposed verdict form and

requested that the form contain a question for each defendant asking whether the defendant’s

conduct was egregious enough to warrant punitive damages. However, MC Companies did

not want separate lines upon which the jury could indicate the amount of punitive damages

assessed for each defendant. Instead, MC Companies wanted only one line upon which the

jury could insert one number representing the aggregate amount of punitive damages

assessed against all of the defendants collectively.

The circuit court ruled that if the question of whether a defendant’s conduct

warranted punitive damages was to be set out separately as to each defendant, then a

corresponding line upon which the jury could state the amount of punitive damages to be

assessed against that defendant also was required. Because MC Companies did not want the

jury to potentially enter a separate amount for punitive damages as to each individual

10

defendant, they withdrew their request to have the jury make a specific determination of

whether punitive damages were warranted for each defendant individually.

Accordingly, the circuit court adopted Mr. Douglas’ verdict form that

contained only one question asking the jury whether the MC Companies’ collective conduct

warranted an award of punitive damages and, in the event that the question was answered

affirmatively, a second question allowing the jury to insert one figure representing the total

amount of punitive damages to be awarded by the jury. Because MC Companies’ withdrew

their request to have the jury make a separate determination for each defendant as to whether

punitive damages were warranted, the circuit court ultimately found this issue was waived

when addressing the same in ruling upon MC Companies’ post-trial motion for a directed

verdict. We find no abuse of discretion in the circuit court’s ruling.

This Court has recognized that “[w]hen there has been a knowing and

intentional relinquishment or abandonment of a known right, there is no error and the inquiry

as to the effect of a deviation from the rule of law need not be determined.” Syl. pt. 8, in part,

State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995). Accord Syl. pt. 4, in part, State v.

Lightner, 205 W. Va. 657, 520 S.E.2d 654 (1999). Similarly, we have stated that “[g]enerally

the failure to object constitutes a waiver of the right to raise the matter on appeal.” State v.

Asbury, 187 W. Va. 87, 91, 415 S.E.2d 891, 895 (1992) (per curiam). See also AIG Domestic

11

Claims, Inc. v. Hess Oil Co., Inc., 232 W. Va. 145, ___, 751 S.E.2d 31, 41 (2013) (“While

this Court admittedly does not approve of the trial court’s arbitrary selection of a finite

number of jury instructions, we do not further address the imposition of the instructional

limitation due to the absence of an objection being raised by the insurance companies on this

particular issue.” (footnote omitted)); State v. White, 231 W. Va. 270, ___, 744 S.E.2d 668,

678 (2013) (per curiam) (concluding that petitioner’s failure to object to jury charge

constituted waiver).

Although MC Companies did initially object to the verdict form on the grounds

that it did not require the jury to decide, separately, whether each defendant’s conduct

warranted punitive damages, they withdrew their objection after learning that the circuit court

would require a corresponding line for each separate defendant upon which the jury could

insert the amount of any punitive damage award granted against that particular defendant.

Because MC Companies withdrew their objection, the circuit court correctly determined that

the issue had been waived. In fact, by withdrawing their objection, it would appear that MC

Companies invited error, which further precludes appellate review of the merits of this issue.

“Invited error” is a cardinal rule of appellate review

applied to a wide range of conduct. It is a branch of the doctrine

of waiver which prevents a party from inducing an inappropriate

or erroneous [ruling] and then later seeking to profit from that

error. The idea of invited error is . . . to protect principles

underlying notions of judicial economy and integrity by

allocating appropriate responsibility for the inducement of error.

Having induced an error, a party in a normal case may not at a

12

later stage of the trial use the error to set aside its immediate and

adverse consequences.

State v. Crabtree, 198 W. Va. 620, 627, 482 S.E.2d 605, 612 (1996). See also Syl. pt. 1,

Maples v. West Virginia Dep’t of Commerce, 197 W. Va. 318, 475 S.E.2d 410 (1996) (“A

litigant may not silently acquiesce to an alleged error, or actively contribute to such error, and

then raise that error as a reason for reversal on appeal.”); In re Tiffany Marie S., 196 W. Va.

223, 233, 470 S.E.2d 177, 187 (1996) ( “[W]e regularly turn a deaf ear to error that was

invited by the complaining party.” (citation omitted)); Shamblin v. Nationwide Mut. Ins. Co.,

183 W. Va. 585, 599, 396 S.E.2d 766, 780 (1990) (finding “the appellant cannot benefit from

the consequences of error it invited”).

To conclude, we find the circuit did not abuse its discretion in finding that MC

Companies waived the issue of whether the verdict form should have required the jury to

separately assess whether each defendant’s conduct warranted an award of punitive

damages.14

14

MC Companies additionally argue to this Court that they also were

improperly grouped together on the verdict form for the jury’s determination of liability and

compensatory damages, and that this defect violated the requirement of the MPLA that the

jury make findings as to the percentage of fault attributable to each defendant. See W. Va.

Code § 55-7B-9(a)(5) (2003) (Repl. Vol. 2008). Because MC Companies failed to raise

these issues to the trial court prior to the jury returning its verdict and being discharged, they

also were waived. Cf. Syl. pt. 2, Combs v. Hahn, 205 W. Va. 102, 516 S.E.2d 506 (1999)

(“Absent extenuating circumstances, the failure to timely object to a defect or irregularity in

the verdict form when the jury returns the verdict and prior to the jury’s discharge, constitutes

(continued...)

13

3. Whether the verdict form enabled the jury to award damages to

non-parties. MC Companies argue that under the West Virginia wrongful death statute, the

only real party in interest is the personal representative of the decedent. Accordingly, MC

Companies contend, the only proper plaintiff in this case was the Estate of Dorothy Douglas.

Therefore, the circuit court erred in adopting a verdict form that allowed the jury to award

damages to Ms. Douglas’ children, Tom Douglas and Carolyn Douglas Hoy. MC Companies

contrast the verdict form to the jury instructions, which stated that the Estate was to receive

all of the damages.

Mr. Douglas disagrees with MC Companies’ assertion that awarding wrongful

death proceeds directly to the wrongful death beneficiaries was legally wrong. Mr. Douglas

submits that, while the personal representative of the deceased in a wrongful death suit must

bring the suit, the personal representative is merely a nominal party and any recovery passes

to the beneficiaries designated in the wrongful death statute and not to the decedent’s estate.

Before conducting our analysis of this issue, we briefly review the relevant

facts. After asking the jury to determine whether there was negligence on the part of MC

Companies that caused the death of Ms. Douglas and to portion that negligence between

14

(...continued)

a waiver of the defect or irregularity in the verdict form.”).

14

ordinary negligence and medical negligence,15 the verdict form next asked the jury to

determine the amount of the damages as follows:16

5. What amount of compensatory damages do you

find Defendants must pay to Dorothy Douglas’ children, Tom

Douglas and Carolyn A. Douglas Hoy, for their sorrow, mental

anguish, and solace which may include society, companionship,

and comfort, individually?

Tom Douglas and Carolyn A. Douglas Hoy $________

In denying MC Companies’ motion for judgment as a matter of law, the circuit

court found

that the verdict form did not allow the jury to improperly award

damages to non-parties, Tom Douglas and Carolyn A. Douglas

Hoy. . . . While the real party in interest is the personal

representative of the deceased in a wrongful death action, the

damages are not awarded to the estate as asserted by the

Defendants but directly to the beneficiaries of the decedent.

The circuit court based its decision upon the language of W. Va. Code § 55-7-6 (1992) (Repl.

Vol. 2008). We agree and therefore find no error.

W. Va. Code § 55-7-6(a) states, in relevant part, that

[e]very such action [for wrongful death] shall be brought

by and in the name of the personal representative of such

15

The jury allocated 80% to ordinary negligence and 20% to medical

negligence.

16

The jury awarded $5 million in compensatory damages.

15

deceased person who has been duly appointed in this State, or in

any other state, territory or district of the United States, or in any

foreign country, and the amount recovered in every such action

shall be recovered by said personal representative and be

distributed in accordance herewith.

In addition, the relevant portion of W. Va. Code § 55-7-6(b) states that “[i]n every such

action for wrongful death, the jury . . . may award such damages as to it may seem fair and

just, and, may direct in what proportions the damages shall be distributed to the

surviving . . . children. . . .” (Emphasis added).

In light of the foregoing language, this Court has observed that, “‘[i]t cannot

be questioned that a wrongful death action . . . must be brought by the personal representative

of a decedent’s estate.’” Richardson v. Kennedy, 197 W. Va. 326, 332, 475 S.E.2d 418, 424

(1996) (quoting Trail v. Hawley, 163 W. Va. 626, 628, 259 S.E.2d 423, 425 (1979)).

Nevertheless, we also have recognized that,

in a wrongful death case, the personal representative is merely

a nominal party, and any recovery passes directly to the

beneficiaries designated in the wrongful death statute, and not

to the decedent’s estate. Syllabus Point 4, McClure v. McClure,

184 W. Va. 649, 403 S.E.2d 197 (1991). See also Dunsmore v.

Hartman, 140 W. Va. 357, 361-62, 84 S.E.2d 137, 139-40

(1954); Peters v. Kanawha Banking & Trust Co., 118 W. Va.

484, 488, 191 S.E. 581, 583 (1937).

Richardson v. Kennedy, 197 W. Va. at 332, 475 S.E.2d at 424. See also Ellis v. Swisher ex

rel. Swisher, 230 W. Va. 646, 650, 741 S.E.2d 871, 875 (2013) (per curiam) (“[W]rongful

death recoveries have been determined to exist solely for the benefit of a decedent’s

16

beneficiaries.”); Bradshaw v. Soulsby, 210 W. Va. 682, 687, 558 S.E.2d 681, 686 (2001)

(“The essential, beneficial purpose of the wrongful death act is ‘to compensate the

beneficiaries for the loss they have suffered as a result of the decedent’s death.’”); Syl. pt.

4, in part, Thompson & Lively v. Mann, 65 W. Va. 648, 64 S.E. 920 (1909) (“Money

recovered in an action by an administrator . . . for causing the death of his decedent by

wrongful act, neglect, or default, does not constitute general assets of the estate of such

decedent in the hands of the administrator to be administered . . . . Such money belongs to

the particular persons who by law are entitled thereto.” (emphasis added)).

This case was properly brought “by and in the name of [Ms. Douglas’]

personal representative” as required by W. Va. Code § 55-7-6(b).17 Thus, the personal

representative should have been the party named on the verdict form. Nevertheless, as this

17

MC Companies additionally complain that the circuit court erred in failing

to dismiss Tom Douglas as a plaintiff in his individual capacity. Insofar as Mr. Douglas also

brought this suit in his capacity as the representative of Ms. Douglas’ estate as required by

W. Va. Code § 55-7-6(b), we find any error resulting from him also being named in his

individual capacity was harmless. See W. Va. R. Civ. P. 61 (stating, in part, that “no error

or defect in any ruling or order or in anything done or omitted by the court or by any of the

parties is ground for granting a new trial or for setting aside a verdict or for vacating,

modifying or otherwise disturbing a judgment or order, unless refusal to take such action

appears to the court inconsistent with substantial justice. The court at every stage of the

proceeding must disregard any error or defect in the proceeding which does not affect the

substantial rights of the parties.”). See also Lacy v. CSX Transp., Inc., 205 W. Va. 630, 643­

44, 520 S.E.2d 418, 431-32 (1999) (“Under W. Va. R. Civ. P. 61 ‘[a] party is entitled to a

new trial only if there is a reasonable probability that the jury’s verdict was affected or

influenced by trial error.’ Tennant v. Marion Health Care Found., Inc., 194 W. Va. 97, 111,

459 S.E.2d 374, 388 (1995).” (footnote omitted)).

17

Court has made clear, the monetary damages awarded by the jury belong to Ms. Douglas’

beneficiaries. Accordingly, while the naming of Ms. Douglas’ beneficiaries on the verdict

form was in error, we find the error to be harmless in that it merely acknowledged that the

monetary recovery would ultimately pass to Ms. Douglas’ children, Tom Douglas and

Carolyn A. Douglas Hoy.

B. MPLA

MC Companies argue that the trial court erred in failing to hold that the MPLA

provided the exclusive remedy for the plaintiffs’ claims against the defendants. They

contend that the MPLA was designed by the Legislature to apply broadly and specifically to

limit malpractice claims concerning nursing homes, and that the Legislature has recognized

that the MPLA can achieve this purpose only if the statute completely occupies the field of

malpractice claims. MC Companies assert that all of Mr. Douglas’ claims fall within the

broad definition of “medical professional liability” because they are all based upon “health

care services” that were “rendered, or which should have been rendered.” W. Va. Code § 55­

7B-2(i) (2006) (Repl. Vol. 2008). See also W. Va. Code § 55-7B-2(e) (defining “Health

care” as “any act or treatment performed or furnished, or which should have been performed

or furnished, by any health care provider for, to or on behalf of a patient during the patient’s

medical care, treatment or confinement”).

18

Mr. Douglas responds that causes of action for both ordinary negligence and

medical malpractice can be asserted by a plaintiff, and the MPLA applies to only the portion

of the compensatory verdict determined by the jury to arise out of health care services

provided by a health care provider. Mr. Douglas asserts that he pled medical malpractice and

corporate negligence and presented evidence on both theories. The jury then determined

what percentage of negligence was related to health care services and what percentage was

not. As to the non-medical corporate defendants, Mr. Douglas asserts that he alleged direct

liability for the decisions they made that had a direct impact on the harm suffered by Ms.

Douglas. Mr. Douglas insists that he did not proceed against any of the corporate defendants

on the basis of vicarious liability. He submits that there was ample evidence presented at

trial, and specific findings made by the trial court, as to how non-healthcare decisions, such

as budgetary constraints, lack of staff, and poor management of the facility, affected all of

the residents, including Ms. Douglas.

We begin our analysis with the recognition that the MPLA governs “medical

professional liability”18 actions against “health care provider[s]”19 and provides the exclusive

18

The MPLA defines “Medical professional liability” as “any liability for

damages resulting from the death or injury of a person for any tort or breach of contract

based on health care services rendered, or which should have been rendered, by a health care

provider or health care facility to a patient.” W. Va. Code § 55–7B–2(i) (2006) (Repl. Vol.

2008).

19

The MPLA defines “Health care provider”

(continued...)

19

remedy for such actions. See, e.g., W. Va. Code § 55-7B-6 (2001) (Repl. Vol. 2008) (stating,

in relevant part, that “no person may file a medical professional liability action against any

health care provider without complying with the provisions of this section”). Notably, this

Court previously has considered the exclusiveness of the MPLA. We first addressed this

issue in Boggs v. Camden-Clark Memorial Hospital Corp., 216 W. Va. 656, 609 S.E.2d 917

(2004), where the plaintiff alleged medical professional liability and also alleged non­

medical claims related to an asserted cover-up of medical negligence. The Boggs Court

concluded that only the medical professional liability claims were subject to the MPLA and

held that

[t]he West Virginia Medical Professional Liability Act,

codified at W. Va. Code § 55-7B-1 et seq., applies only to

claims resulting from the death or injury of a person for any tort

or breach of contract based on health care services rendered, or

which should have been rendered, by a health care provider or

health care facility to a patient. It does not apply to other claims

that may be contemporaneous to or related to the alleged act of

19

(...continued)

as a person, partnership, corporation, professional limited

liability company, health care facility or institution licensed by,

or certified in, this state or another state, to provide health care

or professional health care services, including, but not limited

to, a physician, osteopathic physician, hospital, dentist,

registered or licensed practical nurse, optometrist, podiatrist,

chiropractor, physical therapist, psychologist, emergency

medical services authority or agency, or an officer, employee or

agent thereof acting in the course and scope of such officer’s,

employee’s or agent’s employment.

W. Va. Code § 55-7B-2(g).

20

medical professional liability.

Syl. pt. 3, Boggs, 216 W. Va. 656, 609 S.E.2d 917. The facts in Boggs were that Ms. Boggs,

the plaintiff’s decedent, entered the hospital for ankle surgery. Following the administration

of a spinal anesthetic in preparation for the surgery, she suffered a cardiac arrest and died

several days later. The administrator of her estate filed suit alleging that the anesthesiologist

failed to adhere to the standard of care. Claims were also asserted against the anesthesiology

group and hospital on theories of negligent hiring and retention, and vicarious liability.

Finally,

[a]ccording to [Ms. Boggs’ estate], following the death

of Ms. Boggs, several parties engaged in a cover-up, which led

Mr. Boggs to assert additional claims for fraud, the destruction

of records, the tort of outrage, and the spoliation of evidence.

Mr. Boggs maintains that these claims should be considered to

be separate and distinct from his medical malpractice claims.

Boggs, 216 W. Va. at 659, 609 S.E.2d at 920. In reaching the holding announced in

Syllabus point 3 of the opinion, the Court reasoned that

[f]raud, spoliation of evidence, or negligent hiring are no

more related to “medical professional liability” or “health care

services” than battery, larceny, or libel. There is simply no way

to apply the MPLA to such claims. The Legislature has granted

special protection to medical professionals, while they are acting

as such. This protection does not extend to intentional torts or

acts outside the scope of “health care services.” If for some

reason a doctor or nurse intentionally assaulted a patient, stole

their possessions, or defamed them, such actions would not

require application of the MPLA any more than if the doctor or

nurse committed such acts outside of the health care context.

Moreover, application of the MPLA to non-medical malpractice

claims would be a logistical impossibility. No reputable

21

physician would sign a certificate of merit for a claim of fraud

or larceny or battery; how could such a certificate be helpful or

meaningful?

Boggs, 216 W. Va. at 662-63, 609 S.E.2d at 923-24. Thus, Boggs stands for the proposition

that some claims that may be brought against a health care provider simply do not involve

health care services and, therefore, are not subject to the MPLA. This Court has not deviated

from this conclusion.

Following Boggs, this Court decided Gray v. Mena, 218 W. Va. 564, 625

S.E.2d 326 (2005). In Gray, the Court expressed concern that certain language in the Boggs

opinion might be misconstrued to mean that no intentional acts would fall within the MPLA.

To foreclose such a misinterpretation of Boggs, the Gray Court held that

[t]his Court’s opinion in Boggs v. Camden-Clark

Memorial Hospital Corp., 216 W. Va. 656, 609 S.E.2d 917

(2004), is clarified by recognizing that the West Virginia

Legislature’s definition of medical professional liability, found

in West Virginia Code § 55-7B-2(i) (2003) (Supp.2005),

includes liability for damages resulting from the death or injury

of a person for any tort based upon health care services rendered

or which should have been rendered. To the extent that Boggs

suggested otherwise, it is modified.

Syl. pt. 4, Gray, 218 W. Va. 564, 625 S.E.2d 326.20 Thus, Gray did not change the Court’s

20

Factually, Gray involved a claim that an assault had occurred during the

course of a medical examination by a physician. The circuit court dismissed the action based

upon the plaintiff’s failure to comply with the pre-suit requirements of the MPLA. This

Court observed that,

(continued...)

22

interpretation of the MPLA, first announced in Boggs, that the MPLA applies only to actions

“based upon health care services rendered or which should have been rendered.” Id.

(emphasis added). See also Syl. pt. 3, in part, Boggs, 216 W. Va. 656, 609 S.E.2d 917

(stating that the MPLA “applies only to claims resulting from the death or injury of a person

for any tort or breach of contract based on health care services rendered, or which should

have been rendered, by a health care provider or health care facility to a patient” (emphasis

added)). Indeed,

[i]t has been correctly observed that “[t]he fact that the

alleged misconduct occurs in a healthcare facility does not, by

itself, make the claim one for malpractice. Nor does the fact

that the injured party was a patient at the facility or of the

provider, create such a claim.” Madison Ctr., Inc. v. R.R.K., 853

N.E.2d 1286, 1288 (Ind. Ct. App.2006). See also Atlanta

Women’s Health Group v. Clemons, 287 Ga. App. 426, 651

S.E.2d 762 (2007) (“Of course, not every suit which calls into

20

(...continued)

in the case sub judice, a good faith argument may be made that

a claim of assault and battery is clearly a claim of an intentional

tort which did not involve health care services rendered or

which should have been rendered. Similarly, we recognize that

a good faith argument may be made that because the alleged

assault and battery occurred in the course of an ostensible

medical examination, the Appellant’s claim is subject to the

pre-suit requirements at issue.

Gray v. Mena, 218 W. Va. 564, 568-69, 625 S.E.2d 326, 330-31 (2005). Ultimately the

Court concluded that, “under the particular circumstances of this case, dismissal appears to

be a disproportionately harsh sanction,” particularly in light of the newness of the MPLA at

that time. Gray, 218 W. Va. at 570, 625 S.E.2d at 332. Accordingly, the Court remanded

for reinstatement of the action and to allow the defendants to request compliance with the

MPLA.

23

question the conduct of one who happens to be a medical

professional is a medical malpractice action. We must look to

the substance of an action against a medical professional in

determining whether the action is one for professional or simple

negligence.”); Perkins v. Susan B. Allen Mem’l Hosp., 36 Kan.

App. 2d 885, 146 P.3d 1102, 1107 (2006) (“Not every claim for

negligence against a healthcare provider constitutes

malpractice.”); Draper v. Westerfield, 181 S.W.3d 283, 290

(Tenn. 2005) (“Cases involving health or medical entities do not

automatically fall within the medical malpractice statute.”).

Thus, “when the complaint does not allege negligence in

furnishing medical treatment to a patient, but rather the failure

of a medical provider in fulfilling a different duty, the claim

sounds in negligence.” Rodriguez v. Saal, 43 A.D.3d 272, 841

N.Y.S.2d 232, 235 (2007).

Riggs v. West Virginia Univ. Hosps., Inc., 221 W. Va. 646, 665-66, 656 S.E.2d 91, 110-11

(2007) (per curiam) (Davis, C.J., concurring).21 See also R.K. v. St. Mary’s Med. Ctr., Inc.,

21

Riggs was resolved in a manner that did not require the Court to determine

whether the claims asserted were subject to the MPLA. However, the concurring opinion

opined that

[t]he facts in the instant case demonstrate that at the time

Ms. Riggs was having knee surgery, WVUH exposed all of its

patients, and possibly anyone entering the hospital, to the

potential of contracting a serratia bacterial infection. The

potential for contracting a serratia bacterial infection was not the

reason Ms. Riggs was admitted to the hospital. Ms. Riggs sought

medical treatment for her right knee. The duty breached by

WVUH was not that of failing to properly treat Ms. Riggs’ knee,

WVUH breached a general duty it owed to all patients and

nonpatients to maintain a safe environment. See Padney v.

MetroHealth Med. Ctr., 145 Ohio App.3d 759, 764 N.E.2d 492

(2001) (allowing estate of deceased hospital worker to bring

common law tort actions against hospital on theory that hospital

failed to employ adequate controls to prevent transmission of

(continued...)

24

229 W. Va. 712, 723, 735 S.E.2d 715, 726 (2012) (concluding that “the allegations asserted

in the instant case, which pertain to the improper disclosure of medical records, [do] not fall

within the MPLA’s definition of ‘health care,’ and, therefore, the MPLA does not apply”).

We have cautioned, however, that the manner in which a claim is pled does not

govern whether the MPLA ultimately will be applied to a particular claim. This Court has

held that

[t]he failure to plead a claim as governed by the Medical

Professional Liability Act, W. Va. Code § 55–7B–1, et seq.,

does not preclude application of the Act. Where the alleged

tortious acts or omissions are committed by a health care

provider within the context of the rendering of “health care” as

defined by W. Va. Code § 55–7B–2(e) (2006) (Supp.2007), the

Act applies regardless of how the claims have been pled.

Syl. pt. 4, Blankenship v. Ethicon, Inc., 221 W. Va. 700, 656 S.E.2d 451 (2007). But see

Riggs v. West Virginia Univ. Hosps., Inc., 221 W. Va. at 647-48, 656 S.E.2d at 92-93

(concluding that judicial estoppel prevented plaintiff who “pled, prosecuted and tried their

claims against [the defendant hospital] as claims subject to the provisions of the MPLA”

from changing “the theory of their case after the return of jury’s verdict so as to avoid

21

(...continued)

tuberculosis to its employees). Breach of the duty by a hospital

to maintain a safe environment, which breach causes injury to a

patient or nonpatient, simply does not fall under the MPLA.

Riggs v. West Virginia Univ. Hosps., Inc., 221 W. Va. 646, 666, 656 S.E.2d 91, 111 (2007)

(per curiam) (Davis, C.J., concurring).

25

application of the MPLA’s non-economic damages cap”). Rather, this Court has twice

recognized that the decision of whether the MPLA applies to certain claims presents a fact-

driven query. See Blankenship, 221 W. Va. at 706, 656 S.E.2d at 457 (“[T]he determination

of whether the Medical Professional Liability Act, W. Va. Code § 55–7B–1 et seq., applies

to certain claims is a fact-driven question[.]”); Gray v. Mena, 218 W. Va. at 570, 625 S.E.2d

at 332 (“[W]here the allegedly offensive action was committed within the context of the

rendering of medical services, the [MPLA] applies. Where, however, the action in question

was outside the realm of the provision of medical services, the [MPLA] does not apply.”).

We have clarified, however, and we now expressly hold that, “while the applicability of the

[Medical Professional Liability Act, W. Va. Code § 55-7B-1 et seq.,] is based upon the facts

of a given case, the determination of whether a particular cause of action is governed by the

[Act] is a legal question to be decided by the trial court.” Blankenship, 221 W. Va. at 706

n.12, 656 S.E.2d at 457 n.12.

In the instant case, the circuit court implicitly found that some of Mr. Douglas’

claims were governed by the MPLA while some were not. This determination by the circuit

court is demonstrated by the court’s adoption of a verdict form that allowed the jury to

allocate its negligence award between ordinary negligence and medical negligence. Thus,

this Court’s task is to determine whether the circuit court’s decision in this regard was

correct. We find that it was.

26

Mr. Douglas asserted claims that are not related to medical professional

liability. In other words, they are not claims “based on health care services rendered, or

which should have been rendered, by a health care provider or health care facility to a

patient.” Syl. pt. 3, in part, Boggs, 216 W. Va. 656, 609 S.E.2d 917. In this regard, the

plaintiffs alleged corporate negligence based upon the failure to allocate a proper budget to

Heartland Nursing Home to allow it to function properly, including maintaining adequate

numbers of staff to care for its residents. To support these allegations, Mr. Douglas

presented the testimony of certified nursing assistants (CNAs)22 and a licensed practical nurse

who had worked at Heartland and stated that the facility was nearly always understaffed.

These witnesses described the conditions as “horrible” and “unbearable” due to the low

numbers of staff available to care for residents of the nursing home. At least one former

worker testified that the only time there was close to a sufficient amount of staff at the

facility was when it was being inspected by the State. There was also testimony by the

human relations director for Heartland Nursing Home during the year 2009. She stated that

the CNA turnover rate for that year was 112.3%, and the primary reason given by the CNAs

for leaving their employment with Heartland Nursing Home was that the facility was

understaffed. They also complained of being overworked and underpaid. Requests for

additional staff at Heartland Nursing Home were denied by the regional director of

22

CNAs typically provided the care related to daily living, such as personal

hygiene, moving patients to avoid bed sores, and assisting the patients with eating.

27

operations for Heartland Employment Services, LLC.

Although the problem of understaffing was known by virtue of requests for

salary increases, requests for additional use of agency CNAs, and a survey issued by the West

Virginia Department of Health and Human Services that documented the presence of an

inadequate staff at Heartland Nursing Home prior to Ms. Douglas’ residence there, the issue

was not resolved insofar as there was insufficient staff at the facility to properly care for Ms.

Douglas during her stay. Finally, Mr. Douglas presented evidence that control of Heartland

Nursing Home, both as to budget and staffing, was exercised by companies that did not

qualify as health care providers.23 For example, Heartland Nursing Home’s budget was

ultimately presented to the chief operating officer for Manor Care, Inc., for approval, and

Heartland Nursing Home was expected to comply with the final budget.24

Claims related to business decisions, such as proper budgeting and staffing, by

23

Kathryn Hoops, Vice President, Director of Tax, Internal Audit, and Risk

Management for HCR Manor Care Services, who was designated by each of the corporate

defendants to testify on its behalf, stated that Manor Care, Inc., directly owned and controlled

its subsidiaries.

24

More specifically, the Heartland budget first was reviewed by the Heartland

Nursing Home Administrator; it then had to be reviewed and approved by a regional director

of operations for Heartland Employment Services. Thereafter, it was reviewed and approved

by the General Manager and Vice-President for the Mid-Atlantic Division of Heartland

Employment Services. Once all the budgets for the Mid-Atlantic Division were reviewed,

they were rolled into a divisional operating budget that was submitted for approval to the

chief operating officer for Manor Care, Inc.

28

entities that do not qualify as Health Care Providers under the MPLA simply do not fall

within that statutory scheme. Therefore, the MPLA did not provide the exclusive remedy for

Mr. Douglas’ negligence claims.

C. The Nursing Home Act (NHA)

MC Companies also assert that the circuit court erred in concluding that the

NHA is not limited by the MPLA, because the MPLA applies to all causes of action based

on health care services.

Mr. Douglas contends that the MPLA and the NHA can coexist because they

provide for different actions. In this regard, Mr. Douglas argues that the language of the

NHA indicates that its purpose is to protect nursing home residents that are injured as a result

of any deprivation of a right or benefit, and, while some of these rights or benefits may fall

under the MPLA, others do not. He further asserts that nothing in the MPLA states that it

controls to the exclusion of all other statutes that include claims other than medical

malpractice claims. Thus, he reasons that certainly some actions that occur within a nursing

home do not constitute “healthcare” as defined by the MPLA.

This issue is resolved by application of the version of the Nursing Home Act

29

in effect when this action was filed.25 Our review of the Act is guided by the principle that

“[t]he primary object in construing a statute is to ascertain and give effect to the intent of the

Legislature.” Syl. pt. 1, Smith v. State Workmen’s Comp. Comm’r, 159 W. Va. 108, 219

S.E.2d 361 (1975). Furthermore, in our effort to give meaning to the relevant statutory

25

Notably, W. Va. Code § 16-5C-15 has been amended. In the amended

version, which became effective on July 1, 2013, the Legislature makes clear that the NHA

falls under the MPLA, which is codified at W. Va. Code § 55-7B-1 et seq:

Nothing in this section or any other section of the code

shall limit the protections afforded nursing homes or their

health care providers under article seven-b [§ 55-7B-1 et seq.],

chapter fifty-five of this code. Nursing homes and their health

care providers shall be treated in the same manner as any other

health care facility or health care provider under article

seven-b, chapter fifty-five of this code. The terms “health care

facility” and “health care provider” as used in this subsection

shall have the same meaning as set forth in subsections (f) and

(g), section two, article seven-b, chapter fifty-five of this code.

W. Va. Code § 16-5C-15 (g) (2013) (Supp. 2013) (emphasis added). Also in the amendment,

the Legislature made clear that the revised statute was not to be used to determine whether

the NHA came under the MPLA prior to its 2013 amendments:

The amendments to this section enacted during the 2013

Regular Session of the Legislature shall be effective July 1,

2013: Provided, That there shall be no inference, either positive

or negative, to any legal action pending pursuant to this section

as of July 1, 2013. The amendments to this section in 2013 are

not in any way intended to modify, change, expand or contract

the Medical Professional Liability Act. The proper construction

of this section and the limitations and provisions of article

seven-b, chapter fifty-five of this code shall be determined by

principles of statutory construction.

W. Va. Code § 16-5C-15 (h) (emphasis added).

30

language, we are mindful that “[w]hen a statute is clear and unambiguous and the legislative

intent is plain, the statute should not be interpreted by the courts, and in such case it is the

duty of the courts not to construe but to apply the statute.” Syl. pt. 5, State v. General Daniel

Morgan Post No. 548, Veterans of Foreign Wars, 144 W. Va. 137, 107 S.E.2d 353 (1959).

Neverthless, “[a] statute that is ambiguous must be construed before it can be applied.”

Syl. pt. 1, Farley v. Buckalew, 186 W. Va. 693, 414 S.E.2d 454 (1992).

While the Legislature, by virtue of amendments made in 2013, has now made

it abundantly clear that the NHA falls under the MPLA,26 for the purposes of this case, we

must decide whether the pre-amendment version of the NHA was similarly intended to fall

within the MPLA. We believe the language of the NHA, as it existed at the time relevant to

this matter, evidences an intent on the part of the Legislature to bring it within the MPLA.

This intent is demonstrated in the Act’s repeated acknowledgment that nursing homes are

places providing nursing and/or health care. For example, at the outset, the Act identifies its

purpose

to encourage and promote the development and utilization of

resources to ensure the effective and financially efficient care

and treatment of persons who are convalescing or whose

physical or mental condition requires them to receive a degree

of nursing or related health care greater than that necessary for

well individuals.

26

See supra note 25.

31

W. Va. Code § 16-5C-1 (1997) (Repl. Vol. 2011) (emphasis added). In addition, the Act

defines a “nursing home” as

any institution, residence or place, or any part or unit thereof,

however named, in this state which is advertised, offered,

maintained or operated by the ownership or management,

whether for a consideration or not, for the express or implied

purpose of providing accommodations and care, for a period of

more than twenty-four hours, for four or more persons who are

ill or otherwise incapacitated and in need of extensive, ongoing

nursing care due to physical or mental impairment or which

provides services for the rehabilitation of persons who are

convalescing from illness or incapacitation.

W. Va. Code § 16-5C-2(e) (1997) (Repl. Vol. 2011) (emphasis added). The term “nursing

care” is defined as

those procedures commonly employed in providing for the

physical, emotional and rehabilitational needs of the ill or

otherwise incapacitated which require technical skills and

knowledge beyond that which the untrained person possesses,

including, but not limited to, such procedures as: Irrigations,

catheterization, special procedure contributing to rehabilitation,

and administration of medication by any method which involves

a level of complexity and skill in administration not possessed

by the untrained person.

W. Va. Code § 16-5C-2 (f) (emphasis added). Finally, the Act provides that

[a]ny nursing home that deprives a resident of any right

or benefit created or established for the well-being of this

resident by the terms of any contract, by any state statute or rule,

or by any applicable federal statute or regulation, shall be liable

to the resident for injuries suffered as a result of such

deprivation.

W. Va. Code § 16-5C-15 (c) (1997) (Repl. Vol. 2011) (emphasis added). The foregoing

32

provisions plainly establish the Legislature’s intent that NHA claims related to the provision

of health care services in a nursing home environment are subject to the MPLA.27

Accordingly, the circuit court erred by concluding that “nothing within the

[NHA] . . . provides that it must be controlled . . . by the MPLA.”

This does not end our analysis, however, as we must determine the impact of

the MPLA on Mr. Douglas’ NHA claim. Necessary to the initiation of any claim subject to

the MPLA is the service on a health care defendant of a “notice of claim” and “screening

certificate of merit” by certified mail at least thirty days prior to filing the action. See

W. Va. Code § 55–7B–6(a) (2003) (Repl. Vol. 2008) (declaring that “no person may file a

medical professional liability action against any health care provider without complying with

the provisions of this section”); W. Va. Code § 55–7B–6(b) (requiring notice of claim and

screening certificate of merit). See also State ex rel. Miller v. Stone, 216 W. Va. 379, 383,

607 S.E.2d 485, 489 (2004) (per curiam) (“A proper reading of W. Va. Code § 55–7B–6(b),

indicates that 30 days before a plaintiff files a medical malpractice action, he or she must

serve a notice of claim on the defendant. This notice of claim is to include two things—(1)

27

We recognize that the NHA further authorizes claims that are not related to

the provision of health care and that, therefore, would not be subject to the MPLA. In this

case, however, the verdict form failed to allow the jury to apportion the compensatory

damages awarded under the NHA between heath care related and non-health care related

claims. Accordingly, we are unable to make any judgment as to what portion, if any, of the

NHA award was for non-health care related damages.

33

a statement of the theory or theories of liability upon which a cause of action may be based;

and (2) a screening certificate of merit.”).

In this case, we find nothing in the appellate record to indicate that the

requirements of W. Va. Code § 55–7B–6(b) were met with regard to Mr. Douglas’ NHA

claim. Because MC Companies argued below that Mr. Douglas’ NHA claim fell within the

MPLA, Mr. Douglas was on notice of the possibility that a court may agree. Accordingly,

it was incumbent upon Mr. Douglas to comply with the MPLA. See Gray, 218 W. Va. at

571, 625 S.E.2d at 333 (stating “[w]e emphasize that . . . we would strongly encourage

litigants to err on the side of caution by complying with the requirements of the [MPLA] if

any doubt exists . . .”). In addition, Mr. Douglas was required to document such compliance

in the appellate record to provide this Court with the opportunity for a thorough review. See

Perrine, 225 W. Va. at 597, 694 S.E.2d at 930 (per curiam on pet. for reh’g) (denying

petition for rehearing based, in part, upon refusal to consider evidence that was available

during appeal where record on appeal was not supplemented with such evidence).

Because we are unable to confirm Mr. Douglas’ compliance with the pre-suit

requirements of the MPLA in connection with his NHA claim, we conclude that his NHA

claim must be dismissed. See Davis v. Mound View Health Care, Inc., 220 W. Va. 28, 640

S.E.2d 91 (2006) (finding that circuit court properly dismissed medical malpractice action

34

against nursing home for failure to comply with pre-suit notice requirements of MPLA);

Gray, 218 W. Va. at 571, 625 S.E.2d at 333 (declining to dismiss on particular facts

presented, but warning that “[w]e cannot, however, assure future litigants who fail to comply

with the requirements of the [MPLA] that dismissal can be avoided”).

Because we dismiss Mr. Douglas’ NHA claim, the portion of the compensatory

damages attributed to that claim, which was $1.5 million, is hereby vacated.

D. Breach of Fiduciary Duty

The jury in this case awarded $5 million for harm to Ms. Douglas that resulted

from MC Companies’ breach of a fiduciary duty. MC Companies’ post-verdict motion for

judgment as a matter of law sought to have the circuit court reject this cause of action. In

denying their motion, the circuit court opined that

the Defendants were in a fiduciary relationship with Dorothy

Douglas and owed a fiduciary duty to her. According to the

Restatement (Second) of Torts § 874, “one standing in a

fiduciary relation with another is subject to liability to the other

for harm resulting from a breach of duty imposed by the

relation.” According to the comments, a fiduciary relationship

“exists between two persons when one of them is under a duty

to act for or to give advice for the benefit of another upon

matters within the scope of the relation.” Restatement (Second)

of Torts § 874, cmt. a. Further, a fiduciary who commits a

breach of his duty “is guilty of tortious conduct to the person for

whom he should act.” Id. at cmt. b.

....

35

The Court finds that Dorothy Douglas was a vulnerable

adult upon admission to Defendants’ facility and in a position

where she trusted and depended on the Defendants such that a

fiduciary relationship was present. Thus, Defendants owed a

duty to Ms. Douglas.

On appeal, MC Companies contend that the circuit court erred by denying their

post-verdict motion for judgment as a matter of law as to the claim for breach of fiduciary

duty. MC Companies argue that there is no legal or evidentiary support for a breach of

fiduciary duty claim under the facts of this case. They suggest that there was no evidence

that any defendant undertook a duty to act for the benefit of Ms. Douglas while subordinating

its interests to hers. Instead, there was a contractual relationship that obligated one of its

entities, Health Care and Retirement Corp. of America, LLC, to provide healthcare services

to Ms. Douglas in return for her payment for those services. MC Companies urge this Court

to reject Mr. Douglas’ invitation to adopt new groundbreaking law establishing that nursing

homes owe a fiduciary duty to provide adequate healthcare.

Mr. Douglas responds that one must look at the relationship to determine

whether a fiduciary duty exists. Additionally, Mr. Douglas urges that sufficient evidence was

presented to support the existence of a fiduciary duty and the defendants’ breach of the same.

It is well established that

36

“[t]he fiduciary duty is ‘[a] duty to act for someone else’s

benefit, while subordinating one’s personal interests to that of

the other person. It is the highest standard of duty implied by

law [.]’” Elmore v. State Farm Mut. Auto. Ins. Co., 202 W. Va.

430, 435, 504 S.E.2d 893, 898 (1998) (quoting Black’s Law

Dictionary 625 (6th ed.1990)).

Napier v. Compton, 210 W. Va. 594, 598, 558 S.E.2d 593, 597 (per curiam) (2001). See also

McKinley v. Lynch, 58 W. Va. 44, 57, 51 S.E. 4, 9 (1905) (observing that a fiduciary

relationship exists “whenever a trust, continuous or temporary, is specially reposed in the

skill or integrity of another”). Furthermore, this Court has explained that,

“[a]s a general rule, a fiduciary relationship is established only

when it is shown that the confidence reposed by one person was

actually accepted by the other, and merely reposing confidence

in another may not, of itself, create the relationship.” 36A C.J.S.

Fiduciary, p. 385 (1961).

Elmore v. State Farm Mut. Auto. Ins. Co., 202 W. Va. 430, 436, 504 S.E.2d 893, 899 (1998).

This Court has not previously recognized a cause of action for breach of

fiduciary duty against a nursing home. In other words, we have not ruled that a nursing home

owes a fiduciary duty to its residents or what the parameters of such a duty would be. Based

upon the particular facts of the instant matter, and the small number of jurisdictions who have

expressly recognized such a cause of action,28 we decline Mr. Douglas’ invitation to

28

See, e.g., Petre v. Living Ctrs.-East, Inc., 935 F. Supp. 808, 812 (E.D. La.

1996) (“While this Court concedes that fiduciary relationships are most often found in

financial dealings, the Court can think of no relationship which better fits the above

(continued...)

37

recognize such a cause of action at this time. See, e.g., Howard v. Estate of Harper ex rel.

Harper, 947 So. 2d 854, 861-62 (Miss. 2006) (“‘If the Court were to find a fiduciary

relationship between Plaintiff and [the nursing home licensee and administrators], then a

reasonable inference could be made that each and every employee of [the nursing home],

from the janitorial staff who cleaned Plaintiff’s room to the chief executive officer who

established policies and procedures for [the nursing home], owed a fiduciary duty to the

Plaintiff. The [nursing home licensee and administrators] were primarily responsible for the

management of [the nursing home], a responsibility that typically does not create a fiduciary

duty.’” (quoting Gray v. Beverly Enters.-Miss., Inc., 261 F. Supp. 2d 652, 662-63 (S.D. Miss.

2003), rev’d on other grounds, 390 F.3d 400 (5th Cir. 2004)). Accordingly, we conclude that

the circuit court erred in recognizing a cause of action for breach of fiduciary duty against

a nursing home, and we dismiss this cause of action.

Because we dismiss Mr. Douglas’ claim for breach of fiduciary duty, the

28

(...continued)

description than that which exists between a nursing home and its residents.”); Greenfield

v. Manor Care, Inc., 705 So. 2d 926 (Fla. Dist. Ct. App. 1997) (concluding that “[s]ince [the

plaintiff] properly alleged a fiduciary duty between Manor Care and it residents, which arose

out of a special relationship independent of the contract, and a breach of same, it was error

for the trial court to dismiss [plaintiff’s breach of fiduciary duty claim]”); Zaborowski v.

Hospitality Care Ctr. of Hermitage, Inc., 60 Pa. D. & C. 4th 474, 488-89 (Pa. Com. Pl. 2002)

(“The court concedes, as defendants argue, that fiduciary relationships are most often found

in financial dealings; however, the court believes that the relationship between a nursing

home and its residents can be fiduciary in nature.”).

38

portion of the compensatory damages attributed to that claim, which was $5 million, is

hereby vacated.

E. Punitive Damages

The jury returned a punitive damages verdict of $80 million, which, as noted

above, was entered against all defendants collectively. This punitive damages award

represents an approximately 7:1 ratio29 to the $11.5 million compensatory damages award

granted by the jury. Because we have vacated two of the causes of action upon which

compensatory damages were awarded, the compensatory damages award has been reduced

to $4,594,615.22.30 Applying the 7:1 ratio to the reduced amount of compensatory damages

results in a punitive damages award of $31,978,521.93. Accordingly, we will analyze the

propriety of the punitive damages award using the figure of approximately $32 million.

MC Companies argue that the punitive damages award must be vacated

because the trial court improperly allowed the jury to consider evidence of Manor Care,

Inc.’s, wealth despite the absence of evidence warranting punitive damages against Manor

29

The precise ratio is 6.96:1.

30

See supra Section III.C, which dismisses Mr. Douglas’ Nursing Home Act

claim, and Section III.D, which dismisses Mr. Douglas’ claim for breach of fiduciary duty.

39

Care, Inc.31 Moreover, MC Companies submit that punitive damages require a substantially

greater showing and are permissible only when the defendant’s conduct meets the heightened

standard of “gross fraud, malice, oppression, or wanton, willful, or reckless conduct or

criminal indifference to civil obligations affecting the rights of others.” Syl. pt. 4, in part,

Mayer v. Frobe, 40 W. Va. 246, 22 S.E. 58 (1895). MC Companies further note that the

circuit court allowed the jury’s punitive damages award against Manor Care, Inc., and

permitted consideration of Manor Care, Inc.’s, wealth based upon the court’s finding that “all

four Defendants operated the nursing home jointly.” However, MC Companies assert that

the record does not support this finding.

Additionally, MC Companies argue that this Court should remit the punitive

damages award because it is unconstitutionally excessive. In this regard, they first contend

that the circuit court improperly considered the existence of insurance and acknowledged that

31

MC Companies additionally reasserts their argument that the trial court failed

to ask the jury to determine whether the conduct of each individual defendant was so

egregious that it warranted punitive damages against that particular defendant. As noted

elsewhere in this opinion, see supra Section III.A.2., MC Companies waived this argument.

Accordingly, because the defendants were grouped together for the jury’s determination of

whether punitive damages were warranted and the amount of punitive damages awarded, it

is impossible to ascertain which specific defendants were found by the jury to be subject to

punitive damages. For this reason, any arguments asserted by MC Companies pertaining to

an individual defendant, such as their argument that the evidence was insufficient to warrant

punitive damages against Manor Care, Inc., will not be addressed. We simply have no way

to know whether the jury assessed punitive damages against any particular entity such as

Manor Care, Inc.

40

this improper consideration “weigh[ed] heavily” in its determination that the punitive

damages award was appropriate.32 MC Companies further complain that the circuit court

commented that “public policy is best served by imposing the punitive damage award intact

because of the presence of punitive damage insurance.” Next, they argue that the amount of

punitive damages was grossly disproportionate to the amount of compensatory damages. MC

Companies assert, incorrectly, that the total compensatory damages in this case are $500,000

based upon the MPLA cap. They then argue, also incorrectly, that the ratio in this case is

160:1. MC Companies argue that this Court should allow only a 1:1 ratio. Finally, MC

Companies argue that the amount of punitive damages are grossly disproportionate to civil

penalties for comparable conduct. They assert that the maximum civil penalty under the

NHA for violating the provision governing appropriate staffing in a nursing home is $8,000.

32

On this point, the circuit court stated, in its Garnes order:

At the outset, it should be noted that West Virginia has a

long history and well developed precedent regarding punitive

damages. See Punitive Damages Law in West Virginia, Robin

Jean Davis and Louis Palmer, Jr. (2010). This Perrine order

involves issues of first impression in West Virginia. First, this

case involves reprehensible conduct which resulted in the

wrongful death of Dorothy Douglas. No case in West Virginia

provides a benchmark to measure punitive damages in such

context. Second, the entire punitive damage verdict is covered

by insurance. These factors weigh heavily on the scales of

justice when determining whether the $80 million punitive

damage award is appropriate under West Virginia law.

(Second emphasis added).

41

Citing W. Va. C.S.R. § 64-13-16.9.a. They contend that, similarly, the federal fine for

nursing home deficiencies that put residents’ health in “immediate jeopardy” is a maximum

of $10,000 per day. Citing 42 C.F.R. § 488.438(a)(1)(I). MC Companies argue that,

accordingly, the maximum federal penalty to which they would have been subject for Ms.

Douglas’ nineteen-day stay is $190,000.

Mr. Douglas responds that the punitive damages award was clearly justified

in this case because the evidence demonstrated that MC Companies’ conduct was intentional

and demonstrated actual malice and proximately caused the death of Ms. Douglas. The

actual malice of MC Companies was demonstrated by the fact that the Heartland Nursing

Home was constantly short-staffed, and, therefore, the basic needs of its residents could not

be met. In this regard, Ms. Douglas’ treating physician testified that she died as a result of

dehydration. Further evidence demonstrated that MC Companies attempted to deceive state

surveyors regarding their practice of short-staffing the facility. More importantly, according

to Mr. Douglas, is the fact that there was ample evidence that MC Companies were aware

of these problems yet did nothing to correct them. This knowledge came in the form of

complaints from employees and a citation that had been issued to the facility, prior to Ms.

Douglas’ admission to Heartland Nursing Home, for failing to have adequate staff.

Nevertheless, MC Companies failed to increase its staffing budget.

42

Next, Mr. Douglas argues that the circuit court did not improperly allow the

jury to consider evidence of Manor Care, Inc.’s, wealth. He states that, contrary to MC

Companies’ assertions, the company’s wealth was not a “centerpiece of their punitive

damages case.” Rather, Manor Care, Inc.’s wealth and tax returns were not mentioned until

closing arguments.

Finally, Mr. Douglas argues that the punitive damages award was not excessive

and does not require remittitur. Mr. Douglas asserts that MC Companies submitted various

financial evidence to establish the punitive damage award would effectively wipe out the

profit of over 500 of its nursing homes. Therefore, in awarding punitive damages, the trial

court properly considered the fact that MC Companies had purchased $125 million in

punitive damages liability coverage. Mr. Douglas further clarifies that the punitive damages

award represents only a 7:1 ratio when compared to the actual compensatory damages

awarded in this case. Such a ratio is acceptable in a case such as this where the trial court

found MC Companies’ conduct to be intentional, reprehensible, self-serving, and financially

motivated. Mr. Douglas also contends that, in arguing that the punitive damages should be

reduced, MC Companies failed to conduct a complete analysis of the applicable civil or

criminal penalties that could be imposed. For example, they fail to consider the death of Ms.

Douglas as a result of their conduct.

43

1. Standard of Review. We have established the following standard for

reviewing punitive damages awards:

When reviewing an award of punitive damages in

accordance with Syllabus point 5 of Garnes v. Fleming Landfill,

Inc., 186 W. Va. 656, 413 S.E.2d 897 (1991), and Syllabus point

5 of Alkire v. First National Bank of Parsons, 197 W. Va. 122,

475 S.E.2d 122 (1996), this Court will review de novo the jury’s

award of punitive damages and the circuit court’s ruling

approving, rejecting, or reducing such award.

Syl. pt. 16, Peters v. Rivers Edge Mining, Inc., 224 W. Va. 160, 680 S.E.2d 791 (2009).

Furthermore, in reviewing the punitive damages award, all evidence will be viewed in the

light most favorable to Mr. Douglas as the prevailing party below:

“‘In determining whether the verdict of a jury is

supported by the evidence, every reasonable and legitimate

inference, fairly arising from the evidence in favor of the party

for whom the verdict was returned, must be considered, and

those facts, which the jury might properly find under the

evidence, must be assumed as true.’ Syllabus Point 3, Walker v.

Monongahela Power Co., 147 W. Va. 825, 131 S.E.2d 736

(1963).” Syllabus Point 6, Toler v. Hager, 205 W. Va. 468, 519

S.E.2d 166 (1999).

Syl. pt. 8, Smith v. Cross, 223 W. Va. 422, 675 S.E.2d 898 (2009).

Guided by these standards, we will address the appropriateness of the punitive

damages awarded to Mr. Douglas. At the outset, we note that, in recent years, this Court has

refined the specific analysis to be applied in conducting our de novo review of a punitive

damages award. Thus, we have held that

44

[w]hen this Court, or a trial court, reviews an award of

punitive damages, the court must first evaluate whether the

conduct of the defendant toward the plaintiff entitled the

plaintiff to a punitive damage award under Mayer v. Frobe, 40

W. Va. 246, 22 S.E. 58 (1895), and its progeny. If a punitive

damage award was justified, the court must then examine the

amount of the award pursuant to the aggravating and mitigating

criteria set out in Garnes v. Fleming Landfill, Inc., 186 W. Va.

656, 413 S.E.2d 897 (1991), and the compensatory/punitive

damage ratio established in TXO Production Corp. v. Alliance

Resources Corp., 187 W. Va. 457, 419 S.E.2d 870 (1992)[,

aff’d, 509 U.S. 443, 113 S. Ct. 2711, 125 L. Ed. 2d 366 (1993)].

Syl. pt. 6, Perrine, 225 W. Va. 482, 694 S.E.2d 815. Accordingly, we first “evaluate whether

the conduct of the defendant toward the plaintiff entitled the plaintiff to a punitive damage

award under Mayer v. Frobe, 40 W. Va. 246, 22 S.E. 58 (1895), and its progeny.” Perrine,

225 W. Va. 482, 694 S.E.2d 815.

2. Mayer v. Frobe Analysis. In Mayer v. Frobe, this Court established the

types of conduct that could form the basis for an award of punitive damages: “In actions of

tort, where gross fraud, malice, oppression, or wanton, willful, or reckless conduct or

criminal indifference to civil obligations affecting the rights of others appear, or where

legislative enactment authorizes it, the jury may assess exemplary, punitive, or vindictive

damages; these terms being synonymous.” Syl. pt. 4, Mayer, 40 W. Va. 246, 22 S.E. 58. See

also Syl. pt. 4, Harless v. First Nat’l Bank in Fairmont, 169 W. Va. 673, 289 S.E.2d 692

(1982) (“‘Punitive or exemplary damages are such as, in a proper case, a jury may allow

against the defendant by way of punishment for wilfulness, wantonness, malice, or other like

45

aggravation of his wrong to the plaintiff, over and above full compensation for all injuries

directly or indirectly resulting from such wrong.’ Syllabus Point 1, O’Brien v. Snodgrass,

123 W. Va. 483, 16 S.E.2d 621 (1941).”).

The circuit court concluded that the foregoing standard was met in this case

and related the relevant evidence against the defendants collectively33 as follows:

The Court finds there is ample evidence to support an award of

punitive damages against the HCR Manor Care Defendants.

Specifically, the Court notes that the evidence adduced at trial

was sufficient for the jury to conclude that:

(a) Dorothy Douglas was an incapacitated resident of the

nursing home operated jointly by the HCR Manor Care

Defendants;

(b) Dorothy Douglas was neglected over a period of 19 days

at the nursing home[,] which resulted in her death by

dehydration;

(c) The neglect was perpetrated by the nursing home staff

employed by the HCR Manor Care Defendants;

(d) The HCR Manor Care Defendants were aware that

chronic short-staffing of its nursing homes jeopardized

the health and safety of its residents;

(e) The HCR Manor Care Defendants intentionally acted

with a disregard to a known risk with the high probability

that harm would result from the neglect of incapacitated

residents of its nursing home;

33

See supra note 31.

46

(f) The HCR Manor Care Defendants possessed actual

knowledge of its understaffed nursing home and the risks

attendant to its conduct; and

(g) The HCR Manor Care Defendants were placed on notice

of neglect in its nursing home by residents, resident

families, staff and state regulators but failed to take

appropriate action.

Neglect of an incapacitated resident of a nursing home,

which results in death by dehydration, over a span of 19 days, is

conduct which is sufficient to justify an award of punitive

damages under West Virginia law. Moreover, actual knowledge

of systemic neglect in a nursing home, over a period of months

or years, rises to the level of intentional, wanton, willful and

reckless conduct. The HCR Manor Care Defendants engaged in

a reckless disregard for the lawful rights of its nursing home

residents which resulted in the wrongful death of Dorothy

Douglas. The evidence presented at trial is consistent with and

justifies an award of punitive damages under the Mayer test . . . .

(Footnote omitted).

We agree with the circuit court’s conclusion. The evidence presented at trial

was sufficient to establish that Heartland Nursing Home was chronically understaffed to the

point that it was not able to provide even a life sustaining amount of water to Ms. Douglas

during the nineteen days she resided in that facility. Moreover, by virtue of complaints from

staff, residents, and their families, and surveys conducted by the State of West Virginia, MC

Companies were made aware of the understaffing problem at Heartland Nursing Home in the

47

months preceding Ms. Douglas’ admittance to the facility.34 Despite their knowledge of the

34

In this regard, a Statement of Deficiencies issued by the West Virginia

Department of Health and Human Services to Heartland Nursing Home prior to Ms.

Douglas’ residency there declared:

Based on staff interviews, resident interviews, family interviews

and review of the nursing staffing worksheet, the facility failed

to consistently deploy sufficient nursing staff across all shifts

and units to meet the assessed needs of dependent residents.

This was evidenced by reports given by five (5) of five (5) alert

and oriented residents, during confidential interviews; seven (7)

of seven (7) facility staff during confidential interviews; and a

family member of a current resident residing in the facility. This

deficient practice has the potential to affect all residents in the

facility. . . .

Findings include:

a) During confidential interviews, staff, residents, and family

verbally reported the inability to get even the basic care

completed during times when the facility was short-staffed with

nursing assistants, most notably on the weekends. . . .

....

Nas [(Nursing assistants)], during confidential interviews

reported that, with having only four (4) Nas per floor, it was

impossible to do everything they are supposed to do citing that

this practice hinders prompt response to call bells, caring for

incontinent residents in a timely manner and they noted that

tasks like mouth care often did not get done with short staffing.

A family member stated, during a confidential interview, that,

on 04/18/09, there were only four (4) NAs working on her

family member’s floor, which housed seventy (70) residents.

She stated she has complained to the facility repeatedly of the

problem of too low staffing levels of NAs, but rather than

(continued...)

48

understaffing problem and the risk created thereby, MC Companies failed to increase the

staff at Heartland Nursing Home. Furthermore, and most troublesome, was the evidence that

MC Companies attempted to conceal the fact that Heartland Nursing Home was understaffed

by providing additional staff during times when the facility was being inspected. This

evidence is sufficient to satisfy the Mayer v. Frobe standard. Therefore, punitive damages

were justified. We next examine the amount of the punitive damages award pursuant to the

Garnes factors.

3. Amount of Punitive Damages Award. In Perrine, this Court revisited the

factors set out in Garnes and determined that “court review of punitive damages awards

would be simplified if the [Garnes] factors were grouped according to their purpose.” 225

W. Va. at 553, 694 S.E.2d at 886. Accordingly, the Perrine Court restated the Garnes test

as follows, without changing the substance of the test:

When a trial or appellate court reviews an award of

punitive damages for excessiveness under Syllabus points 3 and

4 of Garnes v. Fleming Landfill, Inc., 186 W. Va. 656, 413

S.E.2d 897 (1991), the court should first determine whether the

34

(...continued)

addressing the problem, the NAs were written up.

Alert and oriented residents, during confidential interviews,

stated it was not unusual to have to wait for more than an hour

for help after pushing the call bell and one (1) resident said she

waited so long for help, after pushing the call bell, that she

voided in her bed.

49

amount of the punitive damages award is justified by

aggravating evidence including, but not limited to: (1) the

reprehensibility of the defendant’s conduct; (2) whether the

defendant profited from the wrongful conduct; (3) the financial

position of the defendant; (4) the appropriateness of punitive

damages to encourage fair and reasonable settlements when a

clear wrong has been committed; and (5) the cost of litigation to

the plaintiff. The court should then consider whether a

reduction in the amount of the punitive damages should be

permitted due to mitigating evidence including, but not limited

to: (1) whether the punitive damages bear a reasonable

relationship to the harm that is likely to occur and/or has

occurred as a result of the defendant’s conduct; (2) whether

punitive damages bear a reasonable relationship to

compensatory damages; (3) the cost of litigation to the

defendant; (4) any criminal sanctions imposed on the defendant

for his conduct; (5) any other civil actions against the same

defendant based upon the same conduct; (6) relevant

information that was not available to the jury because it was

unduly prejudicial to the defendant; and (7) additional relevant

evidence.

Syl. pt. 7, Perrine, 225 W. Va. at 553, 694 S.E.2d at 886. Following this holding, we first

review the aggravating evidence to ascertain whether the punitive damage award was

justified.

a. Garnes Aggravating Factors. The circuit court set out in detail the

aggravating evidence that was presented at trial. We will review this evidence in light of

each of the Garnes aggravating factors.

(1) The first Garnes aggravating factor considers the reprehensibility of

50

the defendant’s conduct. The circuit court concluded that MC Companies’ conduct was

reprehensible based upon the following evidence:

The Court finds that there is sufficient evidence for the

jury to conclude the HCR Manor Care Defendants knowingly

engaged in an intentional and malicious course of conduct

resulting in the neglect of Dorothy Douglas. Such neglect

proximately resulted in her death by dehydration. . . .

The conduct by the HCR Manor Care Defendants is

reprehensible because it was not an isolated event. There was

sufficient evidence presented at trial to establish Dorothy

Douglas was neglected throughout her 19 day ordeal at

Heartland of Charleston [Heartland Nursing Home]. Dorothy

Douglas became immobile, fell, suffered significant head

trauma, developed sores in her mouth for which the dead tissue

had to be scraped away with a scalpel, suffered bruises and sores

on her body, and was so depleted of water that she became

dehydrated and died.

The conduct by the HCR Manor Care Defendants is

reprehensible because the neglect was systemic, repetitive and

[a]ffected other residents as well. The Plaintiff presented

evidence of a survey dated April 29, 2009, months before the

residency of Dorothy Douglas, conducted by state regulators

which cited the West Virginia nursing home for failure to

“consistently deploy sufficient nursing staff across all shifts and

units to meet the assessed needs of dependent residents.” The

survey revealed confidential interviews from staff, residents and

family members who “verbally reported the inability to get even

the basic care completed during times when the facility was

short staffed with nursing assistants most notably on

weekends.” . . . Mark Wilson, Manor Care Regional Director of

Operations (for seven HCR Manor Care nursing homes in West

Virginia, including Heartland [Nursing Home]) testified that he

was aware of the survey results prior to the admission of

Dorothy Douglas and “knew it was a problem.”. . .

Furthermore, the Plaintiff adduced evidence at trial

51

sufficient for a jury to determine the conduct was reprehensible.

Specifically, the Court notes the following:

(a) An HCR Manor Care nursing staff member (Tara

Bowles), assigned to attend Dorothy Douglas, described

the conditions in the nursing home as “horrible” and

“unbearable.”. . . She testified that “there is [sic] too

many patients for us to take care of by ourselves” and

patients would lay in their urine and feces . . . . She

admitted that she and the rest of the staff “couldn’t take

care of the patients the way we should have.”. . . She

testified: “I wouldn’t put my dog there.”;

(b) An HCR Manor Care nursing staff supervisor (Beverly

Crawford), who also attended Dorothy Douglas, testified

the patients “weren’t given the proper care that they

deserved.”. . . She testified that she reported resident

neglect to the HCR Manor Care administrator who

“yelled” at her for documenting patient neglect and

removed the report from the books. . . . She accused the

HCR Manor Care administrator of covering up the

incident. . . .

(c) A registered nurse (Paula Langston) from another facility

(Heritage [Center]) testified that she provided care for

Dorothy Douglas the morning after she was transferred

from HCR Manor Care and that, in her opinion, Dorothy

appeared to have been a victim of neglect. . . .

(d) An HCR Manor Care human resource director (Devon

Revels) testified that she complained to regional

management about the West Virginia nursing home staff

being short-staffed, overworked and underpaid. . . .

[T]his work environment cause[d] great[er] than a 100%

turnover rate in the nursing department.;

(e) The HCR Manor Care Defendants actively concealed and

covered-up their misconduct prior to the death of

Dorothy Douglas. The Plaintiff adduced evidence at trial

that the Defendants intentionally altered data and

52

attempted to cover up their systemic staffing problems

from West Virginia regulators. This intentional conduct

includes: (1) falsifying staffing schedules . . .; (2)

intentionally miscalculating nursing hours . . .; (3)

destruction of written complaints of neglect . . .; (4)

reprimanding employees for documenting neglect . . .;

(5) increasing the number of staff during State

inspections . . . .; and

(f) The HCR Manor Care Defendants acknowledged to state

regulators, prior to Dorothy Douglas’ admission, that the

West Virginia nursing home, particularly the second

floor, was understaffed approximately 46% of the time

[on the weekends]. Dorothy Douglas was a resident of

the second floor. [A member of the] nursing staff

testified the facility was actually short-staffed 99% of the

time. The nursing home administrator testified that he

was aware [of] staffing falling below state minimums on

occasion. . . . Despite acknowledging the problem, the

nursing home was still short-staffed during the residence

of Dorothy Douglas.

In Garnes, this Court indicated that the reprehensibility consideration

should take into account how long the defendant continued in

his actions, whether he was aware his actions were causing or

were likely to cause harm, whether he attempted to conceal or

cover up his actions or the harm caused by them, whether/how

often the defendant engaged in similar conduct in the past, and

whether the defendant made reasonable efforts to make amends

by offering a fair and prompt settlement for the actual harm

caused once his liability became clear to him.

Syl. pt. 3, in part, Garnes, 186 W. Va. 656, 413 S.E.2d 897. We agree with the circuit court

that MC Companies’ conduct was reprehensible.

53

(2) The second Garnes aggravating factor is the profitability of the

wrongful conduct. This analysis “requires consideration of whether [the defendants]

profited from [their] conduct and instructs that punitive damages should remove the profit,

and be in excess of the profit, so as to discourage future bad acts by [the defendants].”

Perrine, 225 W. Va. at 554, 694 S.E.2d at 887. The circuit court concluded that MC

Companies profited from their wrongful conduct. Furthermore, insofar as the punitive

damages award should remove the profit so as to discourage future bad acts by MC

Companies, the circuit court weighed the fact that MC Companies had $125 million in

liability insurance that would cover the punitive damages award. In this regard, the circuit

court stated:

The Court finds there is sufficient evidence adduced at

trial for the jury to conclude that the short-staffing of the nursing

home was directly related to corporate profits. The Plaintiff

presented evidence at trial that staffing is the largest expenditure

in the nursing home industry. . . .

The circuit court was persuaded by Devon Revels, a former human resourse

director at Heartland Nursing Home, who testified that she repeatedly requested authority to

hire more agency employees, but her requests were refused. Ms. Revels opined that having

agency nursing staff working at the nursing home for approximately one month when a group

of new employees was going through orientation would prevent the new employees from

becoming overwhelmed by the short-staffing at the facility and would enhance her ability to

54

retain new employees. She indicated that new employees often resigned before completing

their orientation due to the short staffing of the facility.

Relevant to the goal that a punitive damages award should remove the profit

gained from wrongful conduct, the circuit court rejected MC Companies’ argument that the

award would “‘effectively wipe[] out’ the profit of over 500 HCR Manor Care nursing homes

. . . and . . . may bankrupt . . . and destroy the Defendants . . . .” The circuit court reasoned

that

that the HCR Manor Care Defendants purchased $125 million

in liability insurance. There is no coverage dispute and no

reservation of rights. . . . The insurance policies were submitted

of record and the Court takes judicial notice, with no exception

taken by the Defendants, that the insurance policies expressly

provide coverage for punitive damages. . . . So, in reality, this

verdict will not “wipe out” the Defendants financially. The only

economic cost to the HCR Manor Care Defendants adduced in

the post-trial review is a potential, un-quantified increase in

future insurance premiums . . . .

(Emphasis added).

We find no error with the circuit court’s conclusion that the large punitive

damages award in this case is necessary to remove the profitability of MC Companies’

wrongful conduct. MC Companies was able to achieve a higher profit by having fewer

employees to pay. This profit was achieved at the expense of the residents who were not

properly cared for. As a direct result of MC Companies’ failure to provide adequate staff,

55

the neglect suffered by Ms. Douglas was so severe she was unable to survive it. In addition,

we reject MC Companies’ argument that the existence of punitive damages insurance

coverage was an improper consideration for the trial court in assessing the propriety of the

punitive damages award. The existence of punitive damages insurance coverage is relevant

to several of the factors used to evaluate a punitive damages award. Not only does it impact

whether the punitive damages remove the profit achieved from the wrongful conduct, but it

also bears a relation to the wealth of the defendant and the deterrent effect of the punitive

damages award insofar as it reduces the financial burden on the defendant to pay the award.

(3) The third Garnes aggravating factor is the Defendants’ financial

position. In examining this issue, the circuit court explained that

The HCR Manor Care Defendants assign error to the use of the

Manor Care, Inc. tax return and argue, for the first time post­

trial, that only Heartland of Charleston’s financial information

should have been introduced at trial.35 . . .

This position is untenable[.] . . . [D]ue to the HCR

Manor Care Defendants’ decision to try this matter as a singular

entity and to consolidate all of the Defendants in a singular

punitive damages award, placing into evidence the financial

worth of each Defendant would have been redundant to that

encompassed in the consolidated return for Manor Care, Inc.

The HCR Manor Care Defendants agreed during the jury

charge that they wanted all of the Defendants on a single line

35

The [circuit court] takes judicial notice that the financial information for

Heartland of Charleston was not produced until post-trial.

56

[on the verdict form]. Manor Care, Inc.[,] disclosed the 2009

consolidated tax return for [the] trial record[,] which evidences

$4,085,072,446.00 in total revenue, total assets of

$7,917,892,414.00 and a net profit of $75,263,092.00. HCR

Manor Care Regional Director of Operations, Mark Wilson,

testified that the HCR Manor Care Defendants employ “nearly

60,000 employees working in over 500 locations

nationwide.” . . .

The HCR Manor Care Defendants hold a $4 billion share

of the annual nursing home market and report nearly $8 billion

in assets. The HCR Manor Care Defendants reported a net

operating profit of $75 million in 2009 alone. Given the HCR

Manor Care Defendants’ size and resources, a large punitive

damage award is reasonable and required to serve the purpose

of punitive damages.

While the wealth of a defendant(s) cannot justify an

unconstitutional punitive damages award, the award in this case

is not unconstitutional or excessive. Indeed, to accomplish

punishment and deterrence for such a wealthy company, a

punitive damage award must necessarily be large. Perrine v.

E.I. du Pont de Nemours and Co., 225 W. Va. 482, 555, 694

S.E.2d 815, 888 (2010). This is particularly true when the

“punishment” aspect of a punitive damage award is offset by the

presence of $125 million in punitive damage insurance. This

verdict sends a clear “deterrence” message to a multi-billion

dollar nursing home corporation that its misconduct will not be

tolerated in West Virginia.

We agree with the circuit court’s conclusions and find no error in the reliance

on Manor Care, Inc.’s, wealth in assessing the propriety of the punitive damages award.

Because MC Companies sought to be grouped together with only one line upon which the

jury could place the punitive damages award, it was appropriate for the jury to consider the

57

wealth of all of the defendants. Insofar as MC Companies is a multi-billion dollar entity with

$125 million in punitive damages insurance coverage, the approximately $32 million dollar

punitive damages award is justified.

(4) The fourth aggravating factor in the Garnes analysis is whether the

punitive damages award will encourage fair and reasonable settlements. This Court has

explained that

[t]he focus of the reviewing court’s consideration of whether the

punitive damages award would encourage fair and reasonable

settlements is on the impact it is likely to have on future

litigants. That is, was the award large enough so that a future

defendant who has committed a clear wrong will be encouraged

to accept a fair and reasonable settlement rather than force the

wronged plaintiff into litigation and risk incurring a similarly

large punitive damages award.

Perrine, 225 W. Va. at 556, 694 S.E.2d at 889. In its discussion of this factor, the circuit

court stated:

The parties proffered various versions of the settlement

negotiations during the instant matter. The record indicates the

HCR Manor Care Defendants offered to settle this wrongful

death claim for $150,000 at mediation and raised its offer to

$500,000 sometime before trial. The record also reflects the

HCR Manor Care Defendants have spent over $1.1 million in

litigation defenses. . . .

The documents submitted to the Court indicate the HCR

Manor Care defendants spent nearly $10 million defending $13

million in claims. The record reveals the Defendants are willing

to spend as much money defending claims as settling claims.

Such a business decision does not evidence a willingness to

58

settle claims when a clear wrong has been done. In fact,

spending $10 million defending $13 million in claims evidences

the opposite; to wit, the HCR Manor Care Defendants will

spend nearly as much money defending claims as settling

claims, even though a clear wrong has been done.

The Court finds that this punitive damage award will

encourage the HCR Manor Care Defendants to reconsider its

defense tactics of deny and defend when a clear wrong has been

committed.

We agree with the circuit court that the amount of the punitive damages

awarded in this case is likely to encourage MC Companies and other similar large

corporations to resolve similar disputes through settlement rather than litigation when, as in

this case, a clear wrong has been committed.

(5) The final Garnes aggravating factor is the cost of the litigation to the

plaintiff. The circuit court found that

[t]he Plaintiff expended in excess of $200,000 in

litigation costs and devoted countless hours of attorney time to

bring this case to trial. Prosecuting this case requires a plaintiff

to retain a lawyer capable of financing the litigation costs on a

contingency fee contract. Otherwise, very few West Virginians

could afford to bring the HCR Manor Care Defendants to justice

for the neglect and wrongful death of a family member. It

should be noted that the cost of bringing this case to trial

exceeded the last offer made by the HCR Manor Care

Defendants at mediation. The cost of litigation to the Plaintiff

justifies this award of punitive damages.

59

We agree with the circuit court that the high cost of this litigation to Mr.

Douglas supports the amount of punitive damages awarded in this case.

Because each of the aggravating factors supports the punitive damages award,

we next engage in a ratio determination under TXO Production Corp. v. Alliance Resources

Corp., 187 W. Va. 457, 419 S.E.2d 870 (1992).

b. Excessiveness of Punitive Damages Award. The next step in our analysis

is to compare the punitive damages award to the compensatory damages award to determine

whether the punitive damages bear a reasonable relationship to the compensatory damages.

The circuit court concluded that the ratio was not excessive in this case. As discussed more

fully below, West Virginia has recognized that a ratio of roughly 5:1 is constitutional. See

Syl. pt. 15, TXO, 187 W. Va. 457, 419 S.E.2d 870. Moreover, the federal government has

indicated that a single-digit ratio is more likely to comport with federal due process. See

State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425, 123 S. Ct. 1513, 1524, 155

L. Ed. 2d 585 (2003) (“Single-digit multipliers are more likely to comport with due process,

while still achieving the State’s goals of deterrence and retribution.”). We agree with the

circuit court that the 7:1 ratio in this case passes constitutional muster.

In TXO, this Court explained that “[a]lthough there is no mechanical

60

mathematical formula to use in all punitive damages cases, we think it appropriate here to

offer some broad, general guidelines concerning whether punitive damages bear a reasonable

relationship to actual damages.” TXO, 187 W. Va. at 474, 419 S.E.2d at 887 (emphasis

added).36 Thus, we held that

[t]he outer limit of the ratio of punitive damages to

compensatory damages in cases in which the defendant has

acted with extreme negligence or wanton disregard but with no

actual intention to cause harm and in which compensatory

damages are neither negligible nor very large is roughly 5 to 1.

However, when the defendant has acted with actual evil

intention, much higher ratios are not per se unconstitutional.

Syl. pt. 15, TXO, 187 W. Va. 457, 419 S.E.2d 870 (emphasis added). Similarly, the United

States Supreme Court has commented that

[w]e decline again to impose a bright-line ratio which a punitive

damages award cannot exceed. Our jurisprudence and the

principles it has now established demonstrate, however, that, in

practice, few awards exceeding a single-digit ratio between

punitive and compensatory damages, to a significant degree, will

satisfy due process. . . . Single-digit multipliers are more likely

to comport with due process, while still achieving the State’s

goals of deterrence and retribution, than awards with ratios in

the range of 500 to 1. . ., or, in this case, of 145 to 1.

. . . [B]ecause there are no rigid benchmarks that a punitive

36

In TXO, a punitive damages award of $10,000,000 and a compensatory

damages award of $19,000, which equals a ratio of 526:1, was approved where the defendant

“knowingly and intentionally brought a frivolous declaratory judgment action” against

various businesses and individuals to “clear a purported cloud on a title” when “TXO’s real

intent . . . was to reduce royalty payments under” an oil and gas lease. TXO Prod. Corp. v.

Alliance Res. Corp., 187 W. Va. 457, 462, 419 S.E.2d 870, 875 (1992), aff’d, 509 U.S. 443,

113 S. Ct. 2711, 125 L. Ed. 2d 366 (1993).

61

damages award may not surpass, ratios greater than those we

have previously upheld may comport with due process where a

particularly egregious act has resulted in only a small amount of

economic damages. . . . The converse is also true, however.

When compensatory damages are substantial, then a lesser ratio,

perhaps only equal to compensatory damages, can reach the

outermost limit of the due process guarantee.

Campbell, 538 U.S. at 425, 123 S. Ct. at 1524, 155 L. Ed. 2d 585 (internal quotations and

citation omitted).

Notably, the 5:1 ratio mentioned in Syllabus pont 15 of TXO, as well as the

ratio statements by the United States Supreme Court, do not represent strict standards.

Instead, they merely provide a guide.37 As one court has observed:

[S]tatements by the Supreme Court discuss ratios with specific

reference to the amount of compensatory damages awarded. As

noted above, “low awards of compensatory damages may

properly support a higher ratio than high compensatory awards,”

Gore, 517 U.S. at 582, 116 S. Ct. at 1602; and conversely,

“[w]hen compensatory damages are substantial, then a lesser

ratio, perhaps only equal to compensatory damages, can reach

the outermost limit of the due process guarantee,” Campbell,

538 U.S. at 425, 123 S. Ct. at 1524. Consistent with the

Supreme Court’s refusal to establish rigid benchmarks, these

statements provide guidance rather than a specific

mandate—i.e., in the same way that low compensatory awards

“may” justify higher ratios, smaller ratios “can” reach the

outermost limits of due process when the compensatory award

is substantial. In other words, it appears that low compensatory

awards may, but do not necessarily, justify higher ratios; and in

37

In fact, the award granted in TXO amounted to a 526:1 ratio. See TXO Prod.

Corp. v. Alliance Res. Corp., 187 W. Va. 457, 419 S.E.2d 870.

62

the same way, substantial compensatory awards may, but do not

necessarily, require lower ratios.

Seltzer v. Morton, 336 Mont. 225, 294-95, 154 P.3d 561, 610-11 (2007) (emphasis added)

(footnotes omitted). Even the Campbell Court’s observation that “[s]ingle-digit multipliers

are more likely to comport with due process, while still achieving the State’s deterrence and

retribution goals,” does not proclaim an iron clad rule. Campbell, 538 U.S. at 410, 123 S. Ct.

at 1516, 155 L. Ed. 2d 585. Indeed, although the Supreme Court suggested in Campbell that

a ratio at or near 1:1 may be appropriate in that instance, on remand the Supreme Court of

Utah ultimately granted an award with a ratio of approximately 9:1. See Campbell v. State

Farm Mut. Auto. Ins. Co., 98 P.3d 409, 413 (Utah 2004) (awarding punitive damages of

$9,018,780.75 and compensatory damages of $1 million), cert. denied, 543 U.S. 874, 125

S. Ct. 114, 160 L. Ed. 2d 123 (2004).38 Thus, while “[s]ingle-digit multipliers are more

38

In reaching its decision, the Supreme Court of Utah recognized the United

States Supreme Court’s reluctance to establish a national standard for reprehensibility, and

commented that

[j]ust as behavior may be unlawful or tortious in one state

and not in another, the degree of blameworthiness assigned to

conduct may also differ among the states. As long as the

Supreme Court stands by its view that punitive damages serve

a legitimate means to satisfy a state’s objectives to punish and

deter behavior which it deems unlawful or tortious based on its

own values and traditions, it would seemingly be bound to avoid

creating and imposing on the states a nationwide code of

personal and corporate behavior.

In this instance, we find the blameworthiness of State

(continued...)

63

likely to comport with due process,” Campbell, 538 U.S. at 410, 123 S. Ct. at 1516, 155

L. Ed. 2d 585 (emphasis added), higher ratios, even double or triple digit ratios, are not per

se unconstitutional. See, e.g., TXO Prod. Corp. v. Alliance Res. Corp., 187 W. Va. 457, 419

S.E.2d 870 (upholding 526:1 ratio of punitive damages to compensatory damages), aff’d, 509

U.S. 443, 113 S. Ct. 2711, 125 L. Ed. 2d 366; Williams v. Philip Morris Inc., 344 Or. 45, 176

P.3d 1255 (2008) (affirming award with ratio of 159:1 following remand from United States

Supreme Court), cert. dismissed, 556 U.S. 178, 129 S. Ct. 1436, 173 L. Ed. 2d 346 (2009)

(per curiam). See also, e.g., Eastern Prop. Dev. LLC v. Gill, No. 13-10219, 2014 WL

868613 (11th Cir. Mar. 6, 2014) (affirming punitive damages award with 7:1 ratio); Saunders

v. Branch Banking & Trust Co. of Virginia, 526 F.3d 142 (4th Cir. 2008) (affirming punitive

damages award with 80:1 ratio); Haberman v. The Hartford Ins. Grp., 443 F.3d 1257 (10th

Cir. 2006) (affirming punitive damages award with 20:1 ratio); Mathias v. Accor Econ.

Lodging, Inc., 347 F.3d 672 (7th Cir. 2003) (affirming punitive damages award with 37:1

ratio); Hazard Nursing Home, Inc. v. Ambrose, No. 2012-CA-000636-MR, 2013 WL

38

(...continued)

Farm’s behavior toward the Campbells to be several degrees

more offensive than the Supreme Court’s less than

condemnatory view that State Farm’s behavior “merits no

praise.” Id. at 419, 123 S. Ct. 1513. We reach this conclusion

after applying the relevant reprehensibility standards to the facts

approved for consideration of State Farm’s reprehensibility in

Campbell II, and in light of Utah’s values and traditions.

Campbell v. State Farm Mut. Auto. Ins. Co., 98 P.3d 409, 413 (Utah 2004).

64

3808018 (Ky. Ct. App. July 19, 2013) (affirming punitive damages award with 7.5:1 ratio);

Miller v. Levering Reg’l Health Care Ctr., LLC, 202 S.W.3d 614 (Mo. Ct. App. 2006)

(affirming punitive damages award with 24:1 ratio); Coalson v. Canchola, 287 Va. 242, 754

S.E.2d 525 (2014) (reversing lower court’s remittitur and reinstating jury’s award with 18:1

ratio).

While the foregoing cases are not factually comparable to the instant matter,

they nevertheless serve as instructive examples of cases wherein courts have found high

ratios to be justified and within constitutional limits – even ratios as high as 152:1 or 526:1!

While a large compensatory award, such as the one in this case, may typically be expected

to result in a ratio closer to the range of 1:1, this is not always the case. See, e.g., Aleo v. ALB

Toys USA, Inc., 466 Mass. 398, 995 N.E.2d 740 (2013) (affirming punitive damages award

with 6.8:1 ratio, $2.6 million in compensatory damages and $18 million in punitive damages,

in action alleging negligence, breach of implied warranty, and wrongful death arising from

woman’s death from injuries sustained trying to use inflatable swimming pool slide);

Horizon/CMS Healthcare Corp. v. Auld, 43 Tex. Sup. Ct. J. 1151, 34 S.W.3d 887 (2000)

(affirming punitive damages award with 6.15:1 ratio, $1.54 million in compensatory damages

and $9.48 million in punitive damages, in case involving claims of negligence and gross

negligence, not resulting in death, against a nursing home).

65

What may be gleaned from the forgoing cases is that punitive to compensatory

damages ratios must be examined on a case-by-case basis. See, e.g., Ewing v. California,

538 U.S. 11, 34, 123 S. Ct. 1179, 1192, 155 L. Ed. 2d 108 (2003) (commenting that “the Due

Process Clause directs judges to employ proportionality review in assessing the

constitutionality of punitive damages awards on a case-by-case basis”); Campbell, 538 U.S.

at 425, 123 S. Ct. at 1524, 155 L. Ed. 2d 585 (“The precise award in any case, of course,

must be based upon the facts and circumstances of the defendant’s conduct and the harm to

the plaintiff.”); TXO, 509 U.S. at 458, 113 S. Ct. at 2720, 125 L. Ed. 2d 366 (“‘We need not,

and indeed we cannot, draw a mathematical bright line between the constitutionally

acceptable and the constitutionally unacceptable that would fit every case.’” (quoting Pacific

Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 18, 111 S. Ct. 1032, 1043, 113 L. Ed. 2d 1 (1991)));

Peters v. Rivers Edge Mining, Inc., 224 W. Va. 160, 194, 680 S.E.2d 791, 825 (“‘[T]he

precise award in any case . . . must be based upon the facts and circumstances of the

defendant’s conduct and the harm to the plaintiff.’” (quoting Campbell, 538 U.S. at 425, 123

S. Ct. at 1524, 155 L. Ed. 2d 585)).39 Accordingly, we now hold that whether the ratio of

39

See also, e.g., Trickey v. Kaman Indus. Techs. Corp., 705 F.3d 788, 800 (8th

Cir. 2013) (“[P]unitive damages awards are evaluated on a case-by-case basis.”); Riffey v.

CRST Expedited, Inc., No. 3:12–CV–00294–BRW, 2013 WL 6836665, at *2, (E.D. Ark.

Dec. 20, 2013) (“[P]unitive damages must be determined on a case-by-case basis.”); Cooley

v. Lincoln Elec. Co., 776 F. Supp. 2d 511, 555 (N.D. Ohio 2011) (commenting that “the

Supreme Court has stated clearly that: (1) due process review of punitive damages awards

is a fact-specific, case-by-case inquiry—there are no rigid benchmarks that a punitive

damages award may not surpass” (quotations omitted)); Holmes v. Kansas City Missouri Bd.

(continued...)

66

punitive damages to compensatory damages is constitutional must be examined on a case-by-case

basis.

As the Ninth Circuit has aptly stated: “[W]e emphasize that where the

constitutional limit lies with respect to punitive damages will vary from case to case.

Determining that limit is an art, not a science; no mathematical formula controls; no single

asymptote defines the limit for all cases.” Southern Union Co. v. Irvin, 563 F.3d 788, 792

(9th Cir. 2009). See also Payne v. Jones, 711 F.3d 85, 102 (2d Cir. 2013) (observing that the

United State Supreme Court in BMW of North America, Inc. v. Gore, 517 U.S. 559, 116

S. Ct. 1589, 134 L. Ed. 2d 809 (1996), “repeatedly stressed the impossibility of making any

bright-line test as the propriety of the ratio can vary enormously with the particular facts of

the case”).

A ratio that may be unconstitutionally large in one case may be reasonable in

another. In this regard, we stated in TXO that

[t]he appropriateness of [punitive damages] awards depends on

what it reasonably takes to attract the defendant’s attention

because, as we said in Garnes, an award that might be

39

(...continued)

of Police Comm’rs ex rel. Its Members, 364 S.W.3d 615, 628 (Mo. Ct. App. 2012)

(“[P]unitive damages awards are evaluated on a case-by-case basis.”); Baldwin v. McConnell,

273 Va. 650, 658, 643 S.E.2d 703, 707 (2007) (“[A] reviewing court must consider the

reasonableness of punitive damages on a case-by-case basis, considering the relevant

circumstances in each particular case.”).

67

unreasonable if awarded against Jeff’s Neighborhood Hot Dog

Stand could be quite reasonable if awarded for the same conduct

against McDonald’s. See Garnes, 186 W. Va. at 670, 413

S.E.2d at 910.

187 W. Va. at 476, 419 S.E.2d at 889.

Thus, in determining the propriety of the ratio in the instant case, we must

consider the particular facts involved, and we will view those facts in the context of the

purpose of punitive damages:

“[P]unitive damages serve several purposes. Among the

primary ones are: (1) to punish the defendant; (2) to deter others

from pursuing a similar course; and, (3) to provide additional

compensation for the egregious conduct to which the plaintiff

has been subjected.” . . . Furthermore, “‘[[p]unitive damages]

encourage a plaintiff to bring an action where he might be

discouraged by the cost of the action or by the inconvenience of

a criminal proceeding. . . . [They also] provide a substitute for

personal revenge by the wronged party.’”

Coleman v. Sopher, 201 W. Va. 588, 603 n.22, 499 S.E.2d 592, 607 n.22 (1997) (quoting

Harless v. First Nat’l Bank in Fairmont, 169 W. Va. 673, 691 n.17 & accompanying text,

289 S.E.2d 692, 702 n.17 & accompanying text (1982)). See also Exxon Shipping Co. v.

Baker, 554 U.S. 471, 492, 128 S. Ct. 2605, 2621, 171 L. Ed. 2d 570 (2008) (“[T]he

consensus today is that punitives are aimed not at compensation but principally at retribution

and deterring harmful conduct.”); BMW of No. Am., Inc. v. Gore, 517 U.S. 559, 568, 116

S. Ct. 1589, 1595, 134 L. Ed. 2d 809 (1996) (“Punitive damages may properly be imposed

to further a State’s legitimate interests in punishing unlawful conduct and deterring its

68

repetition.”).

We find that, under the unique circumstances presented herein, the punitive

damages award of approximately $32 million, which amounts to about a 7:1 ratio when

compared to the amount of compensatory damages we have allowed in this opinion, is

justified and does not violate due process. In the face of numerous complaints of

understaffing made by residents of Heartland Nursing Home, their families, and employees

of Heartland, as well as negative results of surveys performed by the State of West Virginia,

MC Companies refused to authorize the use of additional employees to ensure a staff

sufficient to meet even the basic life-sustaining needs of its residents, who are among the

most vulnerable and helpless citizens of West Virginia. MC Companies’ refusal to ensure

that there was sufficient staff at Heartland Nursing Home to properly care for the needs of

its residents, by either increasing staff or reducing the number of residents, implies that

corporate profit was emphasized over the needs of residents.

Action taken or omitted in order to augment profit represents an

enhanced degree of punishable culpability, as of course does

willful or malicious action, taken with a purpose to injure. See

4 [Restatement (Second) of Torts] § 908, Comment e, p. 466

(1977) (“In determining the amount of punitive damages, . . . the

trier of fact can properly consider not merely the act itself but all

the circumstances including the motives of the

wrongdoer . . . .”).

Exxon Shipping Co. v. Baker, 554 U.S. at 493-94, 128 S. Ct. at 2621-22, 171 L. Ed. 2d 570.

Instead of properly addressing the chronic understaffing of Heartland Nursing Home, MC

69

Companies attempted to conceal the same by creating the appearance of adequate staff during

times when the facility was being inspected, and by allowing its posted staffing data to

incorrectly reflect higher levels of staff than were actually working.40 Specifically

demonstrated by the facts of this case, MC Companies’ conduct inflicted egregious physical

harm upon a weak and helpless woman who depended upon them for her care: egregious

physical harm that ultimately cost this helpless woman her life. Furthermore, MC

Companies’ wealth and the existence of $125 million in punitive damages insurance

coverage demand a high punitive damages award to attract the attention of this corporate

conglomerate, discourage future similar conduct, and encourage it to settle future cases for

a reasonable amount when it is clear that a wrong has been committed. Because we find the

punitive damages ratio in this case does not offend due process, we next conclude our review

of the punitive damages award by considering whether any mitigating factor warrants their

reduction.

c. Garnes Mitigating Factors. We review mitigating factors because “[a]

punitive damages award that is not constitutionally excessive under TXO Production Corp.

40

The record in this regard established that the facility was required by law to

post the total number and actual hours of certain nursing staff responsible for resident care.

The West Virginia Department of Health and Human Services instead found, during its

survey of the Heartland Nursing Home facility prior to Ms. Douglas’ residence there, that

“the facility failed to post accurate and complete information on a daily basis to reflect the

number of direct care staff actually working in the facility, as well as the number of residents

in the building, at the beginning of each shift.”

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v. Alliance Resources Corp., 187 W. Va. 457, 419 S.E.2d 870 (1992), may nevertheless be

reduced by a reviewing court when, in the discretion of the court, a reduction is warranted

by mitigating evidence.” Syl. pt. 8, Perrine, 225 W. Va. 482, 694 S.E.2d 815. Thus, we note

that

[t]he Garnes mitigating factors include, but are not

limited to: (1) whether punitive damages bear a reasonable

relationship to compensatory damages; (2) whether punitive

damages bear a reasonable relationship to the harm that is likely

to occur and/or has occurred as a result of the defendant’s

conduct; (3) the cost of litigation to the defendant; (4) any

criminal sanctions imposed on the defendant for his conduct; (5)

any other civil actions against the same defendant based upon

the same conduct; (6) relevant information that was not

available to the jury because it was unduly prejudicial to the

defendant; and (7) additional relevant evidence.

Perrine, 225 W. Va. at 558, 694 S.E.2d at 891. The circuit court found that none of these

factors warranted reducing the punitive damages award in this case. We agree.

Addressing the first factor, the reasonableness of the relationship between

punitive and compensatory damages, the circuit court found that the single digit punitive

damages multiplier, which approximates 7:1, bears a reasonable relationship to the

compensatory damages. Although the compensatory damages award in this case is high, we

find the punitive damages are nevertheless reasonable in this instance. MC Companies’

conduct caused Ms. Douglas to endure a lingering death from dehydration as a consequence

of neglect that resulted from the understaffing of the Heartland Nursing Home facility.

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Despite being made aware of the chronic understaffing at Heartland Nursing Home by

various sources, including their own employees and the State of West Virginia, MC

Companies refused to ensure the presence of a sufficient number staff to meet the basic life-

sustaining needs of its vulnerable, and sometimes helpless, residents. Even worse, MC

Companies attempted to conceal the understaffing from state officials conducting surveys

of their facility. Moreover, due to the wealth of MC Companies and their punitive damages

insurance coverage of $125 million, the large punitive damages award is necessary to achieve

the purposes of punitive damages, including, but not limited to, attracting the attention of MC

Companies, discouraging them from future similar conduct, and encouraging them to settle

future cases for a reasonable amount when a clear wrong has been committed. Because the

punitive damages award bears a reasonable relationship to the compensatory damages, this

factor fails to provide grounds for reducing the award.

In addressing the second factor, whether punitive damages bear a reasonable

relationship to the harm of the defendants’ conduct, the circuit court found that

[n]eglect of an incapacitated resident in a nursing home is a

grievous harm. . . .

The “harm” to Dorothy Douglas was death by

dehydration. It could be said there is no greater harm than the

cost of a life. In this instance, the harm that is likely to occur as

a result of systemic neglect of an incapacitated nursing home

resident is grievous and merits a substantial punitive damage

award.

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Many nursing home residents, like Dorothy Douglas, are

incapacitated and unable to perform basic life functions such as

feeding, bathing and toileting. This is the very reason families

sometimes entrust an incapacitated family member to a nursing

home facility. Chronic short-staffing results in neglect. Neglect

of an incapacitated nursing home resident can lead to death. In

the case of Dorothy Douglas, the conduct by the Defendants

resulted in death by dehydration.

. . . Certainly, the death of Dorothy Douglas occurred under

horrendous circumstances. The Court considers death by

dehydration a cruel act of injustice. . . .

As to the third, fourth, and fifth factors, the circuit court made the following

findings: MC Companies presented evidence to the circuit court that it spent approximately

$1.1 million to defend this matter; no criminal sanctions have been imposed on MC

Companies; and MC Companies failed to establish that they have been the defendant in any

other civil actions arising from the same conduct. Likewise the circuit court found no

relevant mitigating information that was not available to the jury and no additional relevant

evidence.

We already have reduced the punitive damages award from $80 million to

approximately $32 million. Based upon our review of the forgoing mitigating factors, we

find no grounds to warrant any further reduction.

d. Remittitur. As noted at the outset of our analysis of the punitive damages

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award, we applied the nearly 7:1 ratio, which was calculated based upon the jury’s actual

award of compensatory and punitive damages, to calculate a new punitive damages amount

based upon the compensatory damages remaining after we vacated two of Mr. Douglas’

causes of action. That is, applying the approximate 7:1 ratio to the $4,594,615.22

compensatory award that remains standing, we have granted remittitur and reduced the

punitive damages award from $80 million to $31,978,521.93 (a difference of

$48,021,478.07). See Perrine, 225 W. Va. at 560, 694 S.E.2d at 893 (“The method of

granting such a reduction is by remittitur.”).

In Perrine, we explained that

“[t]he historic rationale for remittitur practice is that it

saves the time and expense of a new trial if the plaintiff will

accept a lesser sum as a verdict. The plaintiff is satisfied

because the expense of a new trial is avoided, and the defendant

is satisfied because he or she either obtains a new trial, or has

had the verdict against him or her reduced. Thus this procedure

generally has the effect of facilitating settlement, thereby

enhancing judicial economy.”

225 W. Va. at 560, 694 S.E.2d at 893 (quoting Allsup’s Convenience Stores, Inc. v. North

River Ins. Co., 127 N.M. 1, 6, 976 P.2d 1, 6 (1998)). We also made clear that, “[w]hen a

court grants a remittitur, the plaintiff must be given the option of either accepting the

reduction in the verdict or electing a new trial.” Syl. pt. 9, Perrine, 225 W. Va. 482, 694

S.E.2d 815. Accordingly, we reverse the punitive damages award and remand with

instructions to the circuit court to give Mr. Douglas a period of thirty days from the date the

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mandate for this opinion is issued to advise the circuit court whether he will accept remittitur

in the amount of $48,021,478.07, which would reduce the punitive damages award to

$31,978,521.93, or submit to a new trial on punitive damages only. See Syl. pt. 3, in part,

Gebhardt v. Smith, 187 W. Va. 515, 420 S.E.2d 275 (1992) (per curiam) (“‘Rule 59(a), [West

Virginia Rules of Civil Procedure], provides that a new trial may be granted to any of the

parties on all or part of the issues, and in a case where the question of liability has been

resolved in favor of the plaintiff leaving only the issue of damages, the verdict of the jury

may be set aside and a new trial granted on the single issue of damages.’ Syl. pt. 4,

Richmond v. Campbell, 148 W. Va. 595, 136 S.E.2d 877 (1964).”).

IV.

CONCLUSION

For the reasons explained in the body of this opinion, the April 10, 2013, order

of the circuit court of Kanawha County denying the defendant’s motion for judgment as a

matter of law, a new trial, or remittitur is affirmed as to its rulings that MC Companies

waived the issue of whether the verdict form disregarded the distinct corporate forms of the

defendants, that the verdict form did not allow the jury to award damages to non-parties, and

that the MPLA did not provide the exclusive remedy for the asserted negligence claims. The

order is reversed based upon our finding that the NHA claim is governed by the MPLA, and,

due to a lack of evidence that the pre-suit requirements of the MPLA were met, the NHA

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claim is dismissed, and the accompanying $1.5 million award is vacated. In addition, the

circuit court’s order is reversed insofar as it recognized a breach of fiduciary duty claim

against a nursing home. The breach of fiduciary duty claim is, therefore, dismissed, and the

accompanying $5 million award also is vacated. Finally, we reverse the punitive damages

award and remand with instructions to the circuit court to give Mr. Douglas a period of thirty

days from the date the mandate for this opinion is issued to advise the circuit court whether

he will accept remittitur in the amount of $48,021,478.07, which would reduce the punitive

damages award to $31,978,521.93, or submit to a new trial on punitive damages only.

Affirmed, in part; Reversed, in part; and Remanded.

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