                                                                                 FILED

                                                                            November 17, 2016

No. 15-0695 – Thomas Memorial Hospital v. Susan Nutter                              released at 3:00 p.m.
                                                                                  RORY L. PERRY II, CLERK

                                                                                SUPREME COURT OF APPEALS

WORKMAN, Justice, dissenting, joined by DAVIS, Justice.                              OF WEST VIRGINIA





              I cannot and will not agree to join an opinion which, in effect, arrogantly

assumes the position that a select group of individuals, namely appellate judges, are

better able to determine the credibility of witnesses and the facts of the case than are the

group of average citizens who sat as jurors and actually watched the evidence unfold at

trial. Although the jury system is not perfect, it is clearly the best system in the world for

deriving the truth of facts and under proper instruction of law, assessing liability. (The

people of West Virginia felt that way, too, when they adopted our Constitution. 1 ).

Accordingly, this Court has consistently held that verdicts rendered by a jury are to

remain, for the most part, undisturbed by the trial court. When a case involves conflicting

testimony and it has been fairly tried, “the verdict of the jury will not be set aside unless

plainly contrary to the weight of the evidence or without sufficient evidence to support

it.” Syl. Pt. 4, in part, Laslo v. Griffith, 143 W.Va. 469, 102 S.E.2d 894 (1958); see also

Lodis v. Corbis Holdings, Inc., 366 P.3d 1246, 1249 (Wash. App. Ct. 2015), review

denied, 377 P.3d 744 (2016) (“Trials matter. The results of trials matter.”).




       1
         West Virginia Constitution article III, § 13, provides, in part: “In suits at common
law, where the value in controversy exceeds twenty dollars exclusive of interest and
costs, the right of trial by jury, if required by either party, shall be preserved[.]”

                                              1

              This Court has proclaimed its esteem for the knowledge, wisdom, and

judicial acumen of trial judges in matters of this kind. We have said that:

                     “[T]he ruling of a trial court in granting or denying a
              motion for a new trial is entitled to great respect and weight,
              [and] the trial court’s ruling will be reversed on appeal [only]
              when it is clear that the trial court has acted under some
              misapprehension of the law or the evidence.” Syl. pt. 4, in
              part, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225
              S.E.2d 218 (1976).

Syl. Pt. 2, Estep v. Mike Ferrell Ford Lincoln-Mercury, Inc., 223 W.Va. 209, 672 S.E.2d

345 (2008). It is imperative that this Court accord trial judges great respect in making

these rulings because they have the “unique opportunity to consider the evidence in the

living courtroom context,” while appellate judges are at a severe disadvantage because

we can see only a “cold paper record[.]” Gasperini v. Ctr. for Humanities, Inc., 518 U.S.

415, 438 (1996) (citation omitted).2



              Instead, the majority ignores decades of precedence, shows no deference

whatsoever to the trial court’s judgment, and presents a complete “gloss job” of the facts.

What is beyond troubling, however, is the majority’s blatant disregard for the jury’s

reasoned verdict and patent refusal to apply well-settled law in a neutral way.


       2
        See also Read v. Shu, 615 A.2d 109, 110 (Pa. Super. Ct. 1992) (“An appellate
court by its nature stands on a different plane than a trial court. Whereas a trial court’s
decision to grant or deny a new trial is aided by an on-the-scene evaluation of the
evidence, an appellate court’s review rests solely upon a cold record. Because of this
disparity in vantage points an appellate court is not empowered to merely substitute its
opinion concerning the weight of the evidence for that of the trial judge.”).

                                             2

              Syllabus point five of Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593

(1983) cert. denied, 469 U.S. 981 (1984), controls the standard of review for Thomas

Hospital’s motion for judgment as a matter of law filed pursuant to Rule 50(b) of the

West Virginia Rules of Civil Procedure:

                      In determining whether there is sufficient evidence to
              support a jury verdict the court should: (1) consider the
              evidence most favorable to the prevailing party; (2) assume
              that all conflicts in the evidence were resolved by the jury in
              favor of the prevailing party; (3) assume as proved all facts
              which the prevailing party’s evidence tends to prove; and (4)
              give to the prevailing party the benefit of all favorable
              inferences which reasonably may be drawn from the facts
              proved.


In this case, that rule is cited by the majority but then, utterly disregarded by it.



              The appropriate inquiry of this Court is whether there was sufficient

evidence to support the jury’s verdict; the answer to that question is an obvious “Yes.”

Thomas Hospital’s treatment of Ms. Nutter was appalling. Thomas Hospital falsely

accused Ms. Nutter of fraudulent charting, fired her, and then filed a false complaint with

the Board of Nursing. The jury heard how Thomas Hospital’s actions devastated Ms.

Nutter professionally, financially, and emotionally. And the jury decided that Ms. Nutter

was entitled to be compensated fairly and accurately for injuries directly attributable to

Thomas Hospital’s retaliatory treatment of her.




                                               3

              On what basis, therefore, does the majority reverse the jury’s award? It

concludes that Ms. Nutter’s claims for retaliatory discharge and intentional infliction of

emotional distress fail as a matter of law. The majority goes on to reverse the jury’s

verdict on unpaid wages under the Wage Payment and Collection Act and remands the

case for a new trial on that single issue based on the trial judge’s conduct. The majority’s

analysis is remarkably wrong on those claims.3



              The majority ultimately concludes it is “simply unable to find any evidence

from which a jury could conclude that Thomas Memorial contravened some substantial

public policy principle.” (Emphasis added). That is a jaw-dropping statement considering

the 3,647 page appendix record. This outlandish declaration springs from a diseased root:

an exalted impression of the role of the members of this Court; it is an assertion of

appellate supremacy over the fact-finding function of the jury. The majority envisions

this Court as enthroned and empowered to decide questions of fact and credibility

whenever it believes the jurors got a case wrong. This image of the Court would have

been unrecognizable to those who ratified our Constitution.




       3
          The majority finds that the cause of action for defamation was barred by a one-
year statute of limitation. I do not disagree with that determination. Nevertheless, as
discussed below, Thomas Hospital did not request to have the jury make special findings
as to its liability on each of the issues. Therefore, Ms. Nutter is entitled to receive all the
damages awarded by the jury because it could have attributed those damages to her
retaliatory discharge claim. See Syl. Pt. 6, Orr, 173 W.Va. 335, 315 S.E.2d 593.

                                              4

              To arrive at the result it fancies, the majority has disregarded the applicable

case law, resolved disputed facts in favor of Thomas Hospital, invaded the trial court’s

discretion, and treated the considered judgment of the jurors in a cavalier manner.

However, the jury was far closer to the presentation of the facts than this Court could

ever be through appellate review. It is not the prerogative of this Court to invade the trial

judge’s discretion any more than a trial judge may invade the province of a jury, unless

both or either have palpably abused their function. As discussed more fully below, the

jury reached its conclusion within the parameters of the evidence presented. Furthermore,

the trial court’s behavior, while not flawless, did not warrant reversal of a jury verdict.



                      Evidence Established Retaliatory Discharge

              When we review the evidence in the light most favorable to Ms. Nutter, it is

clear that she presented sufficient evidence of retaliatory discharge to support the jury’s

verdict. This case is patently similar to Tudor v. Charleston Area Medical Center, Inc.,

203 W.Va. 111, 506 S.E.2d 554 (1997), wherein we found there was ample evidence

from which the jury could find that the hospital acted with a “bad motive” in discharging

a nurse because she complained about inadequate staffing and such discharge violated a

substantial public policy set forth in regulations regarding registered nurse (“RN”)

staffing.



              In this case, there can be no reasonable disagreement that the Med-Psych

unit was chronically understaffed. Upon hire, Thomas Hospital told Ms. Nutter that there
                                              5

would be an RN, a licensed practical nurse (“LPN”), two mental health technicians

(“MHTs), and a unit clerk assigned to work the Med-Psych unit during her shift. The unit

did not operate with this full complement of staff, however. In reality, one RN, one LPN,

and one MHT worked on the Med-Psych unit each midnight shift. Beverly Carnifax, an

MHT on the Med-Psych unit, corroborated Ms. Nutter’s testimony that there were

supposed to be two MHTs on the unit. However, throughout 2008 and 2009, Ms.

Carnifax was the only MHT assigned to the unit. Ms. Carnifax admitted that “[w]e

always complained about not having enough help. We complained among ourselves and

just did the work.”



              With only one MHT and no unit clerk to assist her, Ms. Nutter had

difficulty attending to the patients and completing her charting during the shift because

her “main concern was the patient and the safety of the patients.” Ms. Nutter voiced

concerns with her supervisor, Christina Edens, RN, that three full-time employees on that

unit were not enough to provide appropriate care to these patients because of the “acuity

of the patients,” their “cognitive levels, and the fact that they [had] . . . uncontrolled

behaviors and were a danger to themselves and others[.]”4




       4
        During her tenure at Thomas Hospital, Ms. Nutter raised several other patient
safety concerns issues with her supervisor.


                                            6

                Thomas Hospital was cited by the Centers for Medicare and Medicaid

Services (“CMS”) in February of 2008 for deficiencies in staffing. CMS found that the

standard set forth in 42 Code of Federal Regulations § 482.23(b) (2008) 5 regarding

staffing and delivery of care was not met based on a review of the third floor staffing

plan, staff schedules, staff assignments and patient census. The CMS found this

deficiency had “the potential to adversely effect [sic] the care of all patients on the Third

Floor Med/Surg Unit;” the unit adjacent to the Med-Psych unit. When asked if there were

enough staff on the Med-Psych unit to meet this CMS requirement, Ms. Nutter answered

“No” and explained:

                       Well, if we had patients who were suicidal, we had to
                watch them. You know, so that they didn’t get in their rooms
                and maybe if they had gotten hold of something that [they]
                could harm themselves with, slit their wrists or hang
                themselves. So we had to really keep them under observation
                every five minutes.

                        Also, [there] were patients . . . [with] severe dementia,
                and . . . impulse control problems . . . they would be fine one
                minute, they could be beside another patient maybe in their
                rooms, if one patient maybe touched or took another patient’s
                object, they would break out in a fist fight and hurt each
                other. Those types of things went on 24 hours a day.


       5
           42 Code of Federal Regulations § 482.23 provides:

              b) Standard: Staffing and delivery of care. The nursing service must
       have adequate numbers of licensed registered nurses, licensed practical
       (vocational) nurses, and other personnel to provide nursing care to all
       patients as needed. There must be supervisory and staff personnel for each
       department or nursing unit to ensure, when needed, the immediate
       availability of a registered nurse for bedside care of any patient.

                                               7

              Ms. Nutter testified that she cared for challenging patients at the Med-

Psych unit and patient care was her first priority. This ten-bed unit served elderly patients

who had medical issues too serious for a nursing home and patients with psychiatric

issues too serious for the general population of the hospital. Ms. Nutter testified that

              out of ten patients there were many days that I would have 7
              to 8 patients that could not lift a spoon to their mouth. You
              know, they couldn’t bathe themselves. You had to assist with
              showers. You had to feed them. You had to make sure that –
              they were high fall risk. You know, [the patients were] 60, 70,
              80, 90 years old, [and nurses had to make] . . . sure when they
              were ambulating, they didn’t fall and hurt themselves.

              Had a second MHT and unit clerk been assigned to her shift to assist Ms.

Nutter with patient needs, charting, and paper work, she could have spent the time needed

to provide appropriate nursing care. Ms. Nutter would stay over her shift to complete

charting but management discouraged this practice because it led to overtime. However,

Ms. Nutter told the jury that overtime “was severely frowned upon. And Christina

[Edens, her supervisor] would be upset with me.” At times, Ms. Nutter would clock out

and stay to complete her paperwork. In February of 2009, Thomas Hospital placed Ms.

Nutter on a work improvement plan that stretched into May of 2009; instead of providing

sufficient staffing, Thomas Hospital told Ms. Nutter to “improve her time management

skills.”



              The Med-Psych unit required that an RN be present at all times; because

there was only one RN per shift assigned to the unit, Ms. Nutter frequently worked

                                              8

twelve or thirteen hour shifts with no breaks or lunch breaks. If she needed to leave the

unit to take a break, Ms. Nutter would have to call other units to see if someone could

come to relieve her. However, the other units were understaffed as well, so often they

could not relieve her. A witness called by Thomas Hospital confirmed this situation;

Rebecca Chandler, an RN who worked the midnight shift on the Med-Psych unit, was

asked if she “never took a lunch break or other break because there wasn’t anybody to

relieve you?” And she answered, “[t]hat’s right.” These RNs worked twelve hour shifts

with little to no opportunity to step away from the unit to take a break. No one should

have to work under these intolerable conditions. More to the point, however, these

acutely ill patients deserved appropriate medical staff. In fact, Thomas Hospital was

required by federal regulation to provide adequate numbers of nurses “and other

personnel to provide nursing care to all patients as needed. There must be supervisory

and staff personnel for each . . . nursing unit to ensure, when needed, the immediate

availability of a registered nurse for bedside care of any patient.” 42 C.F.R. § 482.23

(emphasis added).



              The evidence also established that Ms. Nutter was the recipient of reprisals

for voicing concerns about patient safety issues including appropriate staffing. Ms. Nutter

testified that she overheard Ms. Edens plotting to discharge her.        Eventually, their

working relationship deteriorated to the point that Ms. Edens “ostracized” Ms. Nutter

“and very nearly just quit communicating with” her. For instance, Thomas Hospital

issued Ms. Nutter a written warning for leaving the unit to take a break to gain
                                       9

composure after caring for a patient who passed away. This incident occurred about a

week after Ms. Nutter’s mother, who also suffered with dementia, died. Ms. Nutter was

unable to find an available RN to cover the unit, but she did make sure a physician

assistant remained on the unit when she took this short break. The jury also heard that

Thomas Hospital retaliated against Ms. Nutter financially and failed to pay her the

enhanced charge nurse pay even though she brought that matter to the attention of Ms.

Edens repeatedly.



              With regard to Ms. Nutter’s retaliatory discharge claim, she identified

several CMS regulations as the sources of substantial public policies of West Virginia.

However, one regulation is so directly on point with this Court’s holding in Tudor that

there is no need to discuss the others. The Medicare provision regarding RN staffing, 42

C.F.R. § 482.23, is nearly identical to the language of the State regulation found by this

Court to constitute substantial public policy in Tudor:

                     West Virginia Code of State Regulations § 64-12­
              14.2.4 (1987) sets forth a specific statement of a substantial
              public policy which contemplates that a hospital unit will be
              properly staffed to accommodate the regulation’s directive; to
              ensure that patients are protected from inadequate staffing
              practices; and to assure that medical care is provided to
              hospital patients, especially children and young adolescents,
              who must depend upon others to protect their medical
              interests and needs.


Syl. Pt. 5, Tudor, 203 W.Va. at 111, 506 S.E.2d at 554. Therefore, the trial court’s ruling

with regard to the retaliatory discharge claim is entirely consistent with our holding in

                                            10

Tudor. In view of our prior precedent on the dispositive issue presented in this case, a

memorandum decision affirming the jury verdict would have been appropriate under

Rule 21 of the West Virginia Rules of Appellate Procedure.



               The majority does not even attempt to distinguish Tudor legally because

clearly it recognized that would be an exercise in futility. In its paltry attempt to

distinguish Tudor factually, the majority sifts through the evidence in both cases and

essentially determines that the plaintiff in Tudor had a better case than Ms. Nutter

because she had more documentary evidence. The majority is eager – even hungry – to

tell everyone how it thinks Ms. Nutter should have presented her case. But the majority

can reach its ultimate conclusion to overturn the jury verdict only by itself weighing the

evidence in favor of Thomas Hospital. The bottom line, however, is that the three

members of the majority discredit Ms. Nutter’s testimony when the jury believed her; by

doing so, the majority usurps the proper role of the jury and denies Ms. Nutter her

constitutional right to a jury trial.



               Not surprisingly, the majority’s recitation of the facts leaves out important

parts of the story. It finds that Ms. Nutter “could not explain the time overlap or the

conflicting documentation.” Actually, Ms. Nutter was given no opportunity to do so. See

note 6 infra. The majority also notes that Ms. Nutter “admitted to the human resources

department that she thought her nurse manager was ‘doing an excellent job[.]’” Actually,

the human resources manager, Marybeth Smith, was not available to meet with Ms.
                                             11

Nutter, and she was referred to Beth Davis who was the nurse recruiter. Ms. Nutter

explained this conversation as follows:

              I said that I knew Christina [Edens] was under a tremendous
              amount of pressure because Joint Commission was coming
              for an inspection and Medicare was coming for an inspection,
              and even though I felt conflicted in my emotions about the
              things that were going on and what she was saying, and the
              discussion that I had overheard . . . I was not going to
              complain to Beth Davis because she was a nurse recruiter.
              And I did not know, understand the realm of her
              responsibility, and I just didn’t want to get Christina [Edens]
              in trouble. She was under tremendous amount of pressure.
              This was her first management job, I was trying in every way
              that I knew to be supportive of her.

In spite of her unreciprocated loyalty to Ms. Edens, Ms. Nutter did report to Ms. Davis

that she was in a “hostile work environment” and asked for a transfer. The majority also

fails to mention the fact that the Med-Psych unit operated with only one MHT; the

majority only discusses the void left by the absence of the unit clerk.



              There is evidence of record to support the jury’s verdict and that alone is

enough for this Court to resolve the case. RN staffing was a problem at Thomas Hospital

even before Ms. Nutter was hired and the problem persisted. She complained to her

supervisor about the difficulty meeting patient needs. Following these complaints, Ms.

Nutter’s working environment grew “hostile” and she was ultimately discharged. Based

on this evidence, the jury concluded that Ms. Nutter was targeted for termination as a

result of those complaints in violation of a substantial public policy of this State.



                                              12

                 The jury heard Ms. Nutter describe the termination meeting in disturbing

detail.6 It is clear from her testimony that Thomas Hospital was determined to fire Ms.


       6
           Ms. Nutter stated that:

               I ran into Christina Edens and Sarala Sasahendrin in the
               hallway. And they said, “Come join us, we’re going up here
               to the personnel office.” So I went with them and did not
               realize anything about why we were there.
                      And we entered into Marybeth Smith’s office and
               Christina began the discussion. And she said, “We have
               called you in here today because . . . on chart audits, we have
               found where you charted a group, a group session while there
               was another group session going on with the recreation
               therapist.” And they told me that it had happened on
               Thursday.
                      So I had to think because so much had happened over
               the weekend. And my response to that was, “Christina, I did
               not do a group session on Thursday when I returned to work.
               I did individual one on one sessions with each patient.” And
               she became argumentative and said, “Well, you could not
               have possibly done it the way you charted it. And therefore,
               we are – we feel that you have falsified patient records,
               patient documentation.”
                      And she even went to the point to raise her arm and
               point and in a rather loud voice said, “There was even one of
               those patients who had not even been gotten out of the bed for
               7 days.” Of course, Thursday was my first day back.
                      So I was very hurt because I felt that she should be
               yelling at the nurses who had left that patient in the bed for 7
               days.
                      So, I said, “Well, I did one on one with each patient.”
               And I turned to Marybeth [Smith, Human Resources
               Director] and leaned forward in my chair to try to explain to
               Marybeth, because I knew she did not understand how
               patients wandered in and out of rooms or in the hallway.
                      And as I was leaning forward trying to explain how
               that the patients traveled on that unit and that I have to keep
               up with them as a nurse. I have to, you know, be where the
(continued . . .)
                                              13

Nutter and was not interested in allowing her to explain what really happened. The jury

also saw that the hospital’s documents actually supported Ms. Nutter’s testimony that she

did nothing wrong.7 Despite this evidence to the contrary, Thomas Hospital’s witnesses,



             patient is. Sarala Sasahendrin had turned her chair sort of
             towards Marybeth and she chimed in and said, “Well, you
             could not have possibly done it in the way that you have
             charted it because it would have taken over ten hours.” And
             she became expressive with her arm and kind of swung her
             left arm back towards me, and swatted her hand at me.
                     And I backed up in my chair and my eyes filled with
             tears. I looked at Marybeth and I said, “Well, I can see that
             you all have already decided what you are going to do.”
                     And at that point she presented me with a paper that
             had been turned over face down on her desk and she turned it
             up and handed it to me. And said, “We are terminating your
             position. We are terminating you today. We will be
             contacting the Nursing Board that you have falsified records.”
      7
        On November 12, 2009, Ms. Nutter charted that from 12:00 to 12:45 she was
providing medication education to the nine patients on the unit. During some of this time
frame, the recreation therapist, Lara Woodrum, charted that she was showing a video
from 11:45 to 12:25. Ms. Woodrum checked “group” for her services, even though she
met with only one patient. Ms. Woodrum left the unit and returned later that day. When
she noticed her charting overlapped somewhat with Ms. Nutter, Ms. Woodrum e-mailed
management that Ms. Nutter did not give the medication counseling when she checked
that she did.
       However, the medical records show that, of the nine patients involved, only one of
them went to see the video with Ms. Woodrum and there was not a recreational “group.”
The other patients were documented as being in bed or in the hall of the unit and were
available to receive the medication counseling from Ms. Nutter. With regard to the
remaining patient who watched the film, it ended at 12:25, giving Ms. Nutter time to
provide medication counseling between 12:25 and 12:45 to that particular patient.
       The charts show that Ms. Nutter was giving the medication education to the
patients, “1:1,” meaning one-on-one, during the period from 12:00 to 12:45. Ms. Nutter
explained that she would talk to a patient about his medications, tend to whatever other
needs he may have, then go to the next patient and repeat the same. She would come back
around to the patients to reinforce what she told them. Ms. Nutter testified that this was
(continued . . .)
                                           14

one by one, still insisted at trial that Ms. Nutter intentionally committed fraudulent

charting. Ms. Nutter’s attorney annihilated their veracity on cross-examination.



             When asked how the termination meeting made her feel, Ms. Nutter

responded that: “I was just blown away. I was tearful. I knew that there was no arguing

with it.” The hospital never gave Ms. Nutter the patient records to look at to defend

against these allegations. Ms. Nutter told the jury what happened after the termination

meeting:

             Christina Edens escorted me to the unit. I was allowed to get
             my belongings.
                    I wasn’t allowed to touch another chart to finish
             anything. And then she escorted me back out the doors and I
             took the elevator to my car and sat in my car.
                    I was having chest pains and crying. And so I took a
             nitroglycerin and tried to collect myself so that I could drive
             home safely.

             By the time the jury heard that Thomas Hospital discharged Ms. Nutter, it

obviously had determined that the accusations of intentional wrongdoing and fraudulent

the only way she knew how to give medication therapy to mentally compromised
patients.
       The jury was shown Patient Observation Flow Sheets, or “bed checks” that
another employee on the same shift, Beverly Carnifax, MHT, with the same patients,
documented that she was giving “current events” education to one patient in one room at
the same time that she was giving current events training to a person in another room;
Ms. Carnifax documented giving current events education to one patient, where the
records show that the patient was in the shower. Yet, the jury heard that absolutely
nothing was done or even mentioned to this employee. The MHT was not fired, not
accused of fraud, not disciplined nor even spoken to by supervisors. These discrepancies
were on the very same records that Thomas Hospital used to support their termination
and accusations of fraudulent charting against Ms. Nutter.

                                            15

charting lacked foundation. However, Thomas Hospital took this discharge a step further,

and endeavored to ruin Ms. Nutter’s career by filing a false complaint with the Nursing

Board. Ultimately, the Nursing Board reviewed the information supplied by Thomas

Hospital and resolved the complaint in Ms. Nutter’s favor without holding a hearing. The

Nursing Board obviously saw the complete lack of merit in Thomas Hospital’s report.8

When one sees such blatantly false claims, one cannot help but conclude that Ms. Nutter

was the victim of a retaliatory discharge.



              The jury also heard that Ms. Nutter was ravaged professionally,

emotionally, and financially as a result of the termination and false complaint to the

Nursing Board. The financial stress and worry about her career and future caused Ms.

Nutter to suffer major depression and anxiety. Ms. Nutter’s expert witness, psychologist

Jeff Harlow, Ph.D., evaluated her and diagnosed a panic disorder, generalized anxiety

disorder, an adjustment disorder and depression. Dr. Harlow opined that Ms. Nutter’s

psychological conditions were permanent and directly related to the termination and

complaint to the Nursing Board: “it has been four years since this event, and she is still




       8
        By letter dated November 17, 2009, Rebecca Brannon, Vice President of Nursing
with Thomas Hospital, informed the Nursing Board that the hospital had discharged Ms.
Nutter for “falsely document[ing] educational sessions with patients.” After reviewing
this matter, the Nursing Board notified Ms. Nutter that it would take no action against her
license by letter dated July 22, 2010.

                                             16

having two to three panic attacks a week and she is still having flashbacks of the

termination. She is having nightmares about the termination.” 9



             Before her termination, fifty-five year old Ms. Nutter was making on

average $55,000 to $59,000 a year as an RN. She intended to work as an RN until at least

age sixty-seven, and “probably longer than that if [she] was physically able.” However,

after the discharge, Ms. Nutter was required to report the pending charges with the

Nursing Board to any potential employer, which basically eliminated her chances of

finding work as an RN for the eight months those charges were pending. Since her

termination, Ms. Nutter has worked as a part-time home health aide, a housekeeper, and

caregiver. In the year 2010, Ms. Nutter earned approximately $18,000; in the year 2011,

she earned approximately $16,000. Ms. Nutter was the sole provider for her teenage

daughter; the family struggled financially and plummeted into poverty.



             For purposes of this Court’s analysis, it is unnecessary to discuss the

evidence Thomas Hospital presented to try to excuse its outrageous behavior. Such


      9
         On cross-examination, defense counsel asked Dr. Harlow about Ms. Nutter’s
previous hospitalization at a psychiatric facility. Dr. Harlow explained that Ms. Nutter
had a history of psychological treatment following the loss of her sixteen-year-old son to
suicide in 2003. He opined that some of her psychological conditions were related to the
loss of her son. However, looking at her records demonstrated that “she was able to get to
a point where she could cope better with” it and “move on and go on with her life” even
though there was always going to be an undercurrent of grief and depression.” For
instance, Ms. Nutter was able to return to work as a nurse and support herself and her
daughter.

                                           17

evidence was placed before the jury and it was firmly rejected; any issue therein would

relate to the jury’s assessment of the credibility of the witnesses. See State v. Guthrie, 194

W.Va. 657, 669, 461 S.E.2d 163, 175 (1995) (“Credibility determinations are for a jury

and not an appellate court.”). Because there was substantial evidence to support the jury’s

verdict, the trial court was correct to deny Thomas Hospital’s motion for judgment as a

matter of law.



              How can the majority possibly escape this painfully obvious conclusion?

Although the majority claims the mantle of precedent, it is unable to identify a single case

that endorses its essential premise, namely, that a plaintiff who prevails following a jury

trial must put forth documentary evidence of the “smoking gun” in a retaliatory discharge

case to survive a Rule 50(b) challenge. See W.Va.R.Civ.P. 50(b). However, Ms. Nutter

explained that she was trying her best to work through the chain of command to solve

problems on the unit. Ms. Nutter admitted she kept no documentation because she was

addressing her concerns with her supervisor, Ms. Edens, and “wasn’t trying to get

anybody in trouble on any level.”



              In Page v. Columbia Natural Resources, Inc., 198 W.Va. 378, 480 S.E.2d

817 (1996), this Court recognized that the ultimate question of whether a plaintiff was the

victim of a retaliatory discharge is not always “strikingly obvious from the record[.]” Id.

at 388, 480 S.E.2d at 827. We astutely observed “that employers rarely discriminate

openly.” Id. Applying the appropriate standard set forth in Orr, in Page, we found
                                             18

sufficient proof upon which the jury could base its verdict. Moreover, we noted “that the

jury had the benefit of observing the testimony and determining the credibility of the

evidence presented on behalf of both parties.” Id. The same rationale rings true in the

instant case.



                     Damages Related to Retaliatory Discharge Claim

                As in Tudor, the verdict form used here allowed the jury to award both

special (lost wages) and general (emotional distress and injury to reputation) damages as

long as the jury found that liability existed as to any one of the four causes of action on

the verdict form. See Tudor, 203 W.Va. at 121 n.25, 506 S.E.2d at 564 n.25.10 Here, the

jury found liability existed as to every cause of action. We previously held with regard to

general verdicts that

                [w]here a jury returns a general verdict in a case involving
                two or more liability issues and its verdict is supported by the
                evidence on at least one issue, the verdict will not be
                reversed, unless the defendant has requested and been refused
                the right to have the jury make special findings as to his
                liability on each of the issues.


Syl. Pt. 6, Orr, 173 W.Va. at 339, 315 S.E.2d at 597.



       10
          In Tudor, the plaintiff alleged constructive retaliatory discharge, tortious
interference with employment opportunities, defamation, invasion of privacy, and
intentional infliction of emotional distress. The jury awarded $500,000 in damages to
professional reputation, emotional distress and mental anguish; we found those damages
duplicative of the jury’s $1,000,000 punitive damage award. Id. at 133, 506 S.E.2d at
576. In this case, however, Ms. Nutter withdrew her request for punitive damages.

                                              19

              Thomas Hospital did not request to have the jury make special findings as

to its liability on each of the issues. Therefore, Ms. Nutter is entitled to receive all the

damages awarded by the jury because it could have attributed those damages to her

retaliatory discharge claim. It is therefore wholly unnecessary to address Thomas

Hospital’s arguments regarding Ms. Nutter’s claims of defamation and the tort of outrage.



         Trial Judge’s Conduct Did Not Unfairly Prejudice Thomas Hospital

              Thomas Hospital devotes half of its brief to arguing that the trial was

fundamentally unfair as a result of the trial judge’s questions and comments; Thomas

Hospital lays blame for the jury verdict against it wholly at the trial judge’s doorstep. Ms.

Nutter responds that most of the questions posed by the trial judge elicited testimony that

was neither hurtful nor helpful to either side, but simply filled in information for the jury.

Ms. Nutter also asserts that defense counsel was disruptive and disrespectful to the court

by repeatedly interrupting the trial and approaching the bench. It does appear that defense

counsel attempted to bait the court, perhaps in the goal of creating a record that could aid

him on appeal.



              As we held in syllabus point one of Alexander ex rel. Ramsey v. Willard,

208 W.Va. 736, 542 S.E.2d 899 (2000): “‘The plain language of Rule 614(b) of the West

Virginia Rules of Evidence authorizes trial courts to question witnesses -- provided that

such questioning is done in an impartial manner so as to not prejudice the parties.’ Syl.

Pt. 3, State v. Farmer, 200 W.Va. 507, 490 S.E.2d 326 (1997).” While the trial judge has
                                             20

wide discretion in the conduct of trial, he or she must not make comments or

insinuations, by word or conduct, indicative of an opinion on the credibility of a witness

or the argument of counsel. Because of the judge’s large influence over the jury, he or she

must exercise a high degree of care to remain impartial, and to not display prejudice or

favor toward any party.11



              In Alexander, we recognized that in order to resolve an allegation of

prejudicial conduct by a trial court, a reviewing court is obligated to evaluate the entire

record. 208 W.Va. at 744, 542 S.E.2d at 907. In this case, some of the trial court’s

leading questions and remarks could be characterized as improper and/or unnecessary.




       11
        Historically, a trial judge’s role in the administration of justice compelled him to
act as more than a simple referee between opposing counsel.

              “In the courts of the United States, as in those of England,
              from which our practice was derived, the judge, in submitting
              a case to the jury, may, at his discretion, whenever he thinks it
              necessary to assist them in arriving at a just conclusion,
              comment upon the evidence, call their attention to parts of it
              which he thinks important, and express his opinion upon the
              facts.” And again: “Trial by jury in the courts of the United
              States is a trial presided over by a judge, with authority, not
              only to rule upon objections to evidence and to instruct the
              jury upon the law, but also, when in his judgment the due
              administration of justice requires it, to aid the jury by
              explaining and commenting upon the testimony, and even
              giving them his opinion on questions of fact, provided only he
              submits those questions to their determination.”

Capital Traction Co. v. Hof, 174 U.S. 1, 16 (1899) (citations omitted).

                                             21

Nevertheless, in view of the totality of the eight-day trial, I have no qualms whatsoever in

concluding that the trial court’s behavior affected the jury’s verdict not at all.



              It was the strength of Ms. Nutter’s case that caused the jury to award her

more than $1 million in damages. After reviewing this record, it is abundantly clear that

Thomas Hospital was teetering on the edge of losing this case before Ms. Nutter even

took the stand. Ms. Nutter’s counsel called a parade of Thomas Hospital’s employees in

her case-in-chief and they all were thoroughly impeached as the pretense for the

discharge was so repugnantly transparent. In stark contrast, Ms. Nutter took the stand on

day four of the trial and offered compelling, articulate testimony that makes even this

cold appellate record shock one’s sense of decency and fair play. By the time Ms. Nutter

stepped down from the witness stand, her case for retaliatory discharge was well-

supported by the evidence. For this reason, the decision of the jury, exercising its

common sense and sound honest judgment regarding the evidence it saw and heard

firsthand, should not be overturned. Thomas Hospital was given every opportunity to

fairly defend its case during an eight-day jury trial, but failed. The trial court recognized

this truth after conducting the trial and it properly denied Thomas Hospital’s motion for

judgment as a matter of law.



              Under any impartial analysis of the record, this Court should have affirmed

that ruling. Instead, the majority suspends ordinary rules of law in its shameful decision

to bestow unmerited victory to Thomas Hospital. Regrettably, the majority pays no heed
                                              22

to the appropriate role of this esteemed Court when it reverses a jury and trial court upon

such lax standards.



              I am authorized to state that Justice Davis joins me in this dissent.




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