                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                       File Name: 12a0413p.06

                 UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                   X
                                                    -
 DENNIS J. FREUDEMAN, individually and as
                                                    -
 executor for the estate of Deceased Dorothy
 V. Freudeman,                                      -
                              Plaintiff-Appellee, -
                                                        No. 12-3130

                                                    ,
                                                     >
                                                    -
                                                    -
            v.
                                                    -
                                                    -
 THE LANDING OF CANTON; EMERITUS
 CORPORATION, dba Emeritus Assisted Living, -
                                                    -
                         Defendants-Appellants, -
 dba Emeritus Senior Living,
                                                    -
                                                    -
 WEGMAN COMPANIES, INC.; WEGMAN                     -
                                                    -
                                                   N
 FAMILY (CANTON) LLC VI,
                                    Defendants.
                     Appeal from the United States District Court
                      for the Northern District of Ohio at Akron.
                No. 5:09-cv-175—David D. Dowd, Jr., District Judge.
                                   Argued: December 5, 2012
                           Decided and Filed: December 19, 2012
Before: McKEAGUE and GRIFFIN, Circuit Judges; DLOTT, Chief District Judge.*

                                       _________________

                                            COUNSEL
ARGUED: Keith Hansbrough, BONEZZI SWITZER MURPHY, POLITO & HUPP
CO., L.P.A., Cleveland, Ohio, for Appellants. Megan J. Frantz Oldham, TZANGAS,
PLAKAS, MANNOS & RAIES, LTD., Canton, Ohio, for Appellee. ON BRIEF: Keith
Hansbrough, Michelle B. Block, BONEZZI SWITZER MURPHY, POLITO & HUPP
CO., L.P.A., Cleveland, Ohio, for Appellants. Megan J. Frantz Oldham, Lee E. Plakas,
TZANGAS, PLAKAS, MANNOS & RAIES, LTD., Canton, Ohio, for Appellee.




         *
           The Honorable Susan J. Dlott, Chief United States District Judge for the Southern District of
Ohio, sitting by designation.


                                                   1
No. 12-3130        Freudeman v. Landing of Canton, et al.                        Page 2


                                 _________________

                                      OPINION
                                 _________________

        McKEAGUE, Circuit Judge. Dorothy Freudeman (“Dorothy”) was a resident
at The Landing of Canton (“The Landing”), an assisted living facility. She was
discovered in an unresponsive state in her room and spent fifteen months in a semi-
comatose state before dying. Her son, Dennis Freudeman (“Freudeman”), sued The
Landing for negligence, violating Ohio’s Patients’ Bill of Rights, wrongful death, and
punitive damages. He alleged that staff at The Landing mistakenly gave Dorothy anti-
diabetic medication, which caused hypoglycemia and resulted in permanent brain
dysfunction. Because he could not prove exactly how Dorothy received the medication,
he requested a jury instruction on res ipsa loquitur, which the district court gave over
The Landing’s objection. The jury found The Landing liable on all claims and awarded
$680,000 in compensatory damages and $1,250,000 in punitive damages, plus attorney
fees.

        The Landing raises four issues on appeal. First, it contends that the res ipsa
loquitur instruction was improper. Second, it argues that the district court engaged in
judicial misconduct by exhibiting bias in favor of Freudeman during the proceedings.
Third, it claims that the district court should not have instructed the jury on punitive
damages. Fourth, it argues that the punitive damages award exceeded the statutory cap.
We affirm on the first three issues. On the fourth issue, we reverse and remand with
instructions to reduce the punitive damages award to $800,000.

                                 I. BACKGROUND

        Dorothy resided at The Landing from 2001 until 2007. She was 80 years old in
2007. She had Parkinson’s disease, dementia, and had suffered a stroke in 2001.
However, she had no history of diabetes or hypoglycemia. She was able to groom
herself, use the restroom, walk with the aid of a walker, and feed herself. On July 5,
2007, an employee of the facility discovered Dorothy at 11:20 a.m. in an unresponsive
No. 12-3130           Freudeman v. Landing of Canton, et al.                                  Page 3


state. She was taken to the hospital, and at 12:30 p.m. a lab test reported that her blood
sugar level was 12. A normal blood sugar level ranges between 70 and 100. Taber’s
Cyclopedic Medical Dictionary 965 (Donald Venes et al. eds., 21st ed. 2009). A blood
sugar level of 12 is extremely low and constitutes severe hypoglycemia. Dorothy was
diagnosed with encephalopathy (brain dysfunction). Her condition improved slightly
from her initially semi-comatose state, but her quality of life was severely diminished.
She lived for fifteen months and died on October 23, 2008. She was survived by four
adult children: Dana, Dennis, Deborah, and David.

        Treating physicians suspected that a possible cause of Dorothy’s hypoglycemia
was ingesting anti-diabetic medication. Although a doctor ordered a test that would
show the presence of such a drug, for an unknown reason the test was never performed.
However, it is undisputed that Dorothy’s medications were administered by staff at The
Landing.

        Shortly after Dorothy’s death, Freudeman filed suit against The Landing and
related corporate entities in the Stark County Court of Common Pleas. He alleged
counts of negligence, violation of Ohio’s Patients’ Bill of Rights,1 wrongful death, and
punitive damages. The defendants removed the case to the United States District Court
for the Northern District of Ohio.

        The case was tried to a jury in late August 2011, and the trial lasted two weeks.
The district court bifurcated the trial into liability and damages phases. Freudeman’s
attorneys proceeded upon the theory that staff at The Landing accidentally administered
anti-diabetic medication to Dorothy, which caused her blood sugar to drop. They
introduced the testimony of two physicians, Doctors Lenhard and Smucker, who testified
that to a reasonable degree of medical probability Dorothy’s hypoglycemia was caused
by anti-diabetic medication. They also introduced the testimony of former employees
of The Landing who described disturbing conditions at the facility, including


        1
         Ohio Rev. Code Ann. § 3721.17(I)(1)(a) provides a cause of action for a resident of a nursing
home whose rights under the statute have been violated. Freudeman alleged that The Landing violated
Dorothy’s “right to adequate and appropriate medical treatment and nursing care.” See § 3721.13(A)(3).
No. 12-3130              Freudeman v. Landing of Canton, et al.                                          Page 4


disorganized medication carts, prepouring of medications, and falsification of medical
records. Although The Landing maintained medication error reports, the reports for
2007 were missing for an unknown reason.

         In response, The Landing disputed that Dorothy was actually suffering from
hypoglycemia on July 5, 2007. It also introduced the testimony of two physicians,
Doctors Myers and Evron, who testified that other things besides anti-diabetic
medication could have caused Dorothy’s hypoglycemia, including malnutrition, other
medications, an undetected insulinoma,2 and a urinary tract infection. Because these
physicians did not state in their expert reports that they had an opinion to a reasonable
degree of medical probability, their testimony was limited to rebutting the testimony of
Freudeman’s expert witnesses. They were not permitted to testify to an alternative cause
for the injury.3

         On the fifth day of the trial, The Landing moved for a mistrial on the ground of
judicial misconduct, claiming that the district court had displayed bias against The
Landing. The district court denied the motion.

         While instructing the jury during the liability phase of the trial, the district court
gave a res ipsa loquitur instruction over The Landing’s objection. The issue of liability
was submitted to the jury with a series of interrogatories. The jury found The Landing
liable for negligence and for violating Ohio’s Patient’s Bill of Rights. After the jury’s
verdict, the district court conducted the damages phase of the trial. The issue of damages
was submitted to the jury, again with a series of interrogatories. The jury awarded
Dorothy’s estate $400,000 for her economic damages and pain and suffering, and
punitive damages of $1,250,000 plus attorney fees. It awarded each of her children



         2
             An insulinoma is a tumor in the pancreas that manufactures excessive amounts of insulin.
         3
           In Ohio, when testifying to proximate causation, an expert must testify that an event was the
probable cause of the injury, that is, that it is more than fifty percent likely that the event caused the injury.
Stinson v. England, 69 Ohio St. 3d 451, 455-56 (1994). If the expert cannot testify with this degree of
certainty, he or she can still rebut the other side’s expert testimony by identifying other possible causes.
Fritch v. The Univ. of Toledo Coll. of Med., No. 11AP-103, 2011 WL 3925697, at *4 (Ohio Ct. App. Sept.
8, 2011).
No. 12-3130            Freudeman v. Landing of Canton, et al.                                       Page 5


$70,000 for wrongful death. The district court eventually awarded $494,037.50 in
attorney fees and $60,136.67 in costs.

         Subsequent to the jury’s verdict, The Landing filed a motion for judgment as a
matter of law and a motion for a new trial. Two grounds are relevant to this appeal:
(1) the res ipsa loquitur instruction was improper, and (2) the instruction on punitive
damages was improper and no reasonable juror could have found the malice necessary
to award punitive damages. The district court denied the motions. The Landing also
filed a motion to reduce the jury’s verdict. It argued that because Ohio law caps punitive
damages at twice compensatory damages, and punitive damages are not available in a
wrongful death action, the punitive damages should not have exceeded twice the
compensatory damages awarded to Dorothy’s estate for the survival claims ($400,000),
and should have been limited to $800,000. The district court summarily denied this
motion.

                                            II. ANALYSIS

A. Res Ipsa Loquitur Instruction

         1. Standard of Review

         We review a district court’s decision to give a particular jury instruction for an
abuse of discretion.4 In re Scrap Metal Antitrust Litigation, 527 F.3d 517, 536 (6th Cir.
2008). “This court will not reverse a decision on the basis of an erroneous jury
instruction where the error is harmless.” Pivnick v. White, Getgey & Meyer Co., LPA,
552 F.3d 479, 488 (6th Cir. 2009) (quotations omitted); see also Fed. R. Civ. P. 61. “A
judgment may be reversed based upon an improper jury instruction only if the
instructions, viewed as a whole, were confusing, misleading, or prejudicial.” In re Scrap
Metal Antitrust Litigation, 527 F.3d at 536 (quotations omitted).



         4
           Both parties state that the applicable standard of review is de novo. However, whereas the
correctness of a statement of law in a jury instruction is a matter of law and reviewed de novo, the decision
of whether to give a particular instruction is reviewed for an abuse of discretion. See 9C Federal Practice
& Procedure § 2558 (3d ed. 2012). The Landing has not challenged the correctness of the res ipsa
instruction. Rather, it has challenged the decision to give the instruction.
No. 12-3130        Freudeman v. Landing of Canton, et al.                           Page 6


       2. Res Ipsa Loquitur

       a. Legal Principles

       Generally speaking, to prove negligence a plaintiff must identify specific actions
or omissions by the defendant and “must point to a particular way in which that conduct
could have been made safer.” Dan B. Dobbs et al., Dobbs’ Law of Torts § 168 (2d ed.
2012). If the plaintiff cannot point to specific actions, he or she can sometimes invoke
the doctrine of res ipsa loquitur. “Res ipsa loquitur is an evidentiary rule that permits,
but does not require, a jury to draw an inference of negligence from circumstantial
evidence.” Estate of Hall v. Akron Gen. Med. Ctr., 125 Ohio St. 3d 300, 303 (2010).
“The rule allows a common sense appraisal of the circumstances surrounding an unusual
accident, permitting a jury to draw the obvious conclusion that the accident was the
defendant’s fault and requiring the defendant to explain why the accident was not his
fault.” Id. “Res ipsa loquitur” literally means “the thing speaks for itself.” Id. In Byrne
v. Boadle (Ex. 1863), 159 Eng. Rep. R. 299; 2 H. & C. 722, a venerable English case that
still provides the classic example for this doctrine, the plaintiff was hit on the head by
a barrel of flour while passing by the defendant’s shop. The plaintiff could not prove
that the defendant was negligent because he did not know how or why the barrel fell.
The Exchequer Court said that this was a case in which it could be said res ipsa
loquitur—the thing speaks for itself. The accident itself gave rise to a presumption of
negligence, so the burden to prove facts inconsistent with negligence rested upon the
defendant.

       In Ohio, res ipsa loquitur does not give rise to a presumption of negligence. It
merely allows the jury to infer negligence. See Morgan v. Children’s Hosp., 18 Ohio
St. 3d 185, 187 (1985). Furthermore, there are two prerequisites for applying the
doctrine of res ipsa loquitur in Ohio. First, the instrumentality causing the plaintiff’s
injury must have been under the defendant’s “exclusive management and control.”
Estate of Hall, 125 Ohio St. 3d at 305 (quotations omitted). Second, the injury must
have “occurred under such circumstances that in the ordinary course of events it would
not have occurred if ordinary care had been observed.” Id. (quotations omitted).
No. 12-3130        Freudeman v. Landing of Canton, et al.                          Page 7


“Where it has been shown by the evidence adduced that there are two equally efficient
and probable causes of the injury, one of which is not attributable to the negligence of
the defendant, the [doctrine] does not apply.” Jennings Buick, Inc. v. City of Cincinnati,
63 Ohio St. 2d 167, 171 (1980).

       b. Application

       The Landing presents three arguments as to why it was improper for the district
court to instruct the jury on res ipsa loquitur in this case. However, before discussing
these arguments, we must point out a false assumption that underlies two of them. At
trial, Freudeman proceeded under the theory that anti-diabetic medication caused
Dorothy’s hypoglycemia. It called two experts who testified that such medication
probably caused the injury. The Landing disputed this theory and called two experts
who, although they could not testify to a probable cause of the injury, rebutted the
testimony of Freudeman’s experts by postulating that Dorothy’s hypoglycemia could
possibly have been caused by a variety of other factors.

       The Landing assumes that this dispute is relevant to our evaluation of the res ipsa
loquitur issue. However, The Landing has failed to appreciate that the interrogatories
were arranged to eliminate any impact this dispute could have had upon the
appropriateness of a res ipsa instruction. The first interrogatory asked whether Dorothy
was hypoglycemic on July 5, 2007. The second interrogatory asked whether Dorothy’s
hypoglycemia was caused by anti-diabetic medication. The third interrogatory asked
whether The Landing administered the anti-diabetic medication to Dorothy. Not until
the fourth interrogatory was the jury asked whether The Landing was negligent. Each
interrogatory required the jury to have answered “yes” to the previous interrogatory
before moving to the next. Therefore, the jury was instructed not to reach the issue of
negligence—where the res ipsa instruction became applicable—unless it first found that
anti-diabetic medication caused Dorothy’s injury. The Landing has not challenged the
sufficiency of the evidence supporting the jury’s finding that anti-diabetic medication
caused Dorothy’s hypoglycemia, so we view that finding as conclusive. Due to the
arrangement of the interrogatories, in this case the res ipsa issue can be simplified to
No. 12-3130        Freudeman v. Landing of Canton, et al.                          Page 8


asking whether res ipsa applies if anti-diabetic medication was the injury-causing
instrumentality.

       The above discussion demonstrates that The Landing’s first argument is without
merit. The Landing contends that res ipsa does not apply because the instrumentality
that caused the injury was disputed. But this dispute was resolved against The Landing
before res ipsa even came into play.

       The Landing’s second argument is that Freudeman did not establish the first
prong for applying res ipsa loquitur—that the instrumentality causing the injury was
within its exclusive management and control. It contends that res ipsa cannot apply
because the instrumentality that caused Dorothy’s injury—found by the jury to be anti-
diabetic medication—was not within its exclusive management and control. Although
the jury found pursuant to the third interrogatory that The Landing administered the anti-
diabetic medication to Dorothy, The Landing asserts that Freudeman presented no direct
evidence to that effect, which should preclude the application of res ipsa loquitur.

       In support of this argument, The Landing cites a decision by the same district
court judge that presided over the trial in this case: Soehnlen v. Aultman Hosp., No. 5:06
CV 1594, 2008 WL 1886145 (N.D. Ohio, April 24, 2008). In that case the plaintiff
claimed that she contracted Hepatitis C while undergoing a treatment that involved
circulating her blood through a machine. Id. at *1. Her expert lacked expertise in the
particular treatment she received and could identify no negligence, but he testified that
the treatment was the most likely source of her infection. Id. at *3. The defendant’s
experts testified that all the components used in her treatment were sterile and that her
blood was never exposed to an outside source. Id. at *4-6. Because she could not
identify a specific act of negligence, the plaintiff invoked res ipsa loquitur. Id. at *9.
The defendant moved for summary judgment, and the district court judge granted it. Id.
at *12. He found that the instrumentality that caused the plaintiff’s injury was body
fluids infected with Hepatitis C, not the equipment and personnel used in her treatment.
Id. at *9. He then concluded that obviously the hospital did not have exclusive
management and control over every potential source of Hepatitis C. Id. at *9-10.
No. 12-3130         Freudeman v. Landing of Canton, et al.                            Page 9


        But the instrumentality in Soehnlen—bodily fluids containing Hepatitis C—is
a far cry from the instrumentality in this case—anti-diabetic medication. Here, all of
Dorothy’s medications were administered by The Landing. Furthermore, testimony
indicated that all the residents at The Landing who were taking non-insulin, anti-diabetic
medication had their medications administered by The Landing. Indeed, only about four
residents in the entire facility administered their own medications. And finally, The
Landing of course exercised ultimate control over the assisted living facility.

        To invoke res ipsa loquitur, the plaintiff need not rule out all far-fetched
possibilities that a third party could have controlled the injury-causing instrumentality.
In a case where a water main burst and damaged the plaintiff’s building, the city argued
that res ipsa loquitur did not apply because a third party could have caused the pipe to
burst. See Jennings Buick, Inc. v. City of Cincinnati, 63 Ohio St. 2d 167, 172 (1980).
The Ohio Supreme Court explained that “a showing of exclusive management and
control is necessary only insofar as it supplies the logical basis for the inference that the
negligence which caused the injury was that of the defendant, and not that of a third
party.” Id. at 173. Since the city owned the water mains and the ground surrounding
them, it was “extremely unlikely” that a third party caused the pipe to burst. Id.
Accordingly, the court found the exclusive management and control requirement to be
met. Id.

        Here too, since The Landing does not contest that it administered Dorothy’s
medications and in fact administered all the non-insulin, anti-diabetic medications in its
facility, there is no evidence in the record that suggests that a third party provided the
harmful medication to Dorothy. If The Landing did allow pills to sit out in its residents’
rooms where they were accessible to other residents, or be carried in by visitors and
distributed to its residents, this lax supervision itself would almost certainly constitute
negligence. There is no evidence that Dorothy had a propensity to ingest illicit
medications, so again the record does not support the contention that she obtained the
medication herself. Instead, the facts establish a logical basis for inferring that if anyone
No. 12-3130         Freudeman v. Landing of Canton, et al.                         Page 10


was negligent in this case, it was the personnel who administered Dorothy’s medications.
The Landing’s second argument is without merit.

        The Landing’s third argument is that Freudeman did not establish the second
prerequisite for applying res ipsa loquitur—that in the ordinary course of events the
injury would not have occurred in the absence of negligence. It argues that since its
experts testified to other possible causes for Dorothy’s hypoglycemia that did not
involve negligence, this is not a situation where negligence can be inferred. The
Landing here repeats the same mistake it makes in its first argument—it ignores the fact
that the jury was required to initially determine whether anti-diabetic medication caused
Dorothy’s injury. Once again, the issue must be approached with this preliminary
finding in mind. The question is not whether a person can become hypoglycemic in the
absence of negligence, but whether hypoglycemia caused by anti-diabetic medication
would have occurred in this context in the absence of negligence. Correctly stating the
issue makes the answer easy—no.

        Finally, the policy underlying the doctrine of res ipsa loquitur supports its
application here. The Ohio Supreme Court has explained that the doctrine “had its
origin in the law of necessity.” Fink v. New York Cent. R. Co., 144 Ohio St. 1, 5 (1944).
“The particular justice of the doctrine rests upon the foundation that the true cause of the
occurrence whether innocent or culpable is within the knowledge or access of the
defendant and not within the knowledge or access of the plaintiff.” Id. The doctrine
motivates the defendant to produce evidence that would deter the jury from inferring
negligence.    Here, the exact cause of Dorothy’s injury was unascertainable by
Freudeman. Dorothy sustained her injury while she was within the exclusive care of The
Landing. The 2007 medication error reports, which were kept by The Landing and
might have explained her injury, inexplicably went missing. Under these facts, requiring
The Landing to provide an explanation to avoid a possible inference of negligence was
perfectly appropriate and in furtherance of the justification behind the res ipsa doctrine.
If nothing else, the instruction was not an abuse of discretion.
No. 12-3130         Freudeman v. Landing of Canton, et al.                         Page 11


B. Judicial Misconduct

        1. Legal Principles

        “This Court reviews a district court’s conduct during trial for an abuse of
discretion.” McMillan v. Castro, 405 F.3d 405, 409 (6th Cir. 2005). The trial judge, as
the “governor of the trial,” is free to ask questions to clarify a witness’s testimony but
must remain dispassionate and impartial. Nationwide Mut. Fire Ins. Co. v. Ford Motor
Co., 174 F.3d 801, 805 (6th Cir. 1999), overruled on other grounds by Adkins v.
Wolever, 554 F.3d 650, 652 (6th Cir. 2009). A trial judge has considerable discretion
to question witnesses in order to “clarify and develop [the] facts.” Ralph by Ralph v.
Nagy, 950 F.2d 326, 330 (6th Cir. 1991). However, it is reversible error for the trial
court to belittle counsel, demonstrate outright bias, or “so infect[] [the trial] with the
appearance of partiality” that the trial court’s conduct inevitably improperly influenced
the jury. McMillan, 405 F.3d at 409-10 (quotations omitted). The “threshold inquiry”
is whether the district court’s conduct falls outside the realm of acceptable, “though not
necessarily model, judicial behavior.” Id. at 410. In making this determination, we look
at a variety of factors including “the nature of the issues at trial” (intervention is often
needed in a long, complex trial), the conduct of counsel and witnesses, “the tone of the
judicial interruptions, the extent to which they were directed at one side more than the
other, and the presence of any curative instructions at the close of the proceedings.” Id.
If we find judicial misconduct, we will automatically reverse. Id. at 410.

        2. Application

        On day five of the trial, The Landing moved for a mistrial based on judicial
misconduct, and the motion was denied. On appeal, The Landing points to three specific
instances of alleged judicial misconduct. It claims that the district court essentially told
the jury that it believed a witness had been impeached, implied that The Landing
“burn[ed]” a medication error report, and inappropriately questioned a witness’s
credibility.
No. 12-3130         Freudeman v. Landing of Canton, et al.                         Page 12


        As to the claim that the district court told the jury that a witness, Bridgett Hall,
had been impeached, the Landing pulls this statement out of context. The district court
first discussed with the jury the concept of referring a witness to prior testimony and
offered two potential reasons why lawyers do so: to refresh the witness’s recollection or
to impeach the witness’s credibility. R. 281, Trial Tr. PageID # 3759. The district court
stated, “I gather that counsel for the plaintiff is attempting to impeach this witness . . .
because she’s apparently testified to something differently today than . . . [in her]
deposition.” Id. The district court next stated, “It is for you to decide if she has been
impeached . . . , and then it’s also for you to decide whether it’s of any importance.” Id.
The court never stated and hardly implied that the witness was impeached, and the court
gave a prompt curative instruction.

        Turning to the statement about burning a medication error report, context again
is key. The district court asked the witness, Channin McElroy, where the medication
reports were maintained, if she knew what happened to the missing reports, if she burned
them, and if she left them for the person who took over her position. R. 283, Trial Tr.
PageID # 4287-88. In response to the question, “Did you burn them?” the witness
answered, “No I did not.” Id. The use of the word “burn,” which carries a prejudicial
connotation in this context, is problematic. “Destroy” would perhaps have been more
appropriate. However, when set in the context of a series of questions designed to
clarify exactly what happened to a key missing document, the question does not indicate
bias.

        The final asserted basis for judicial misconduct is that the district court
improperly questioned this same witness’s veracity. McElroy had been the marketing
director and then the executive director at The Landing of Canton. She testified very
specifically to Dorothy’s physical and mental well-being, including referring to a decline
in appetite and unsteadiness in her gait. R. 283, Trial Tr. PageID # 4280-83. The district
court interjected to ask, “There were 80-some residents there. How do you recall her
specifically?” Id. at # 4283. She replied, “I had a very good relationship with the
overall residents from the number of years that I was in that community.” Id. The
No. 12-3130         Freudeman v. Landing of Canton, et al.                          Page 13


district court responded, “You can tell me the same kind a [sic] picture about the other
79 residents?” Id. She answered, “Yes, Your Honor, I am [sic],” and the district court
said, “Okay. Thank you.” Id.

        This series of questions did call into question the veracity of the witness’s
statements, but it was reasonable for the court to ask them because as a management-
level employee, the witness was providing a surprising amount of detail about Dorothy’s
life. And after the witness explained how she knew these details, the district court
thanked her for the explanation. Although the witness’s credibility may momentarily
have been called into question, the district court resolved a question that was likely
present in the minds of the jurors, and if anything the conclusion of the exchange likely
bolstered the witness’s credibility.

        Here, the conduct of the district court was not “egregious.” See United States v.
Tilton, 714 F.2d 642, 645 (6th Cir. 1983). This was a lengthy and complex trial that
spanned a two-week period. At the close of the proceedings, the district court attempted
to cure any possible indication of bias by stating, “[N]othing that I have said or done
during the trial was meant to influence or should influence your decision about the facts
in any way.” R. 285, Trial Tr. PageID # 4896. In hindsight, the district court could
perhaps have framed some of its questions differently, but such will often be the case
after a long trial. As the trial was not “so infected with the appearance of partiality” that
the district court’s conduct inevitably improperly influenced the jury, McMillan,
405 F.3d at 410 (quotations omitted), we do not find judicial misconduct here.

C. Punitive Damages Instruction

        The Landing objected to the district court’s instructing the jury on punitive
damages and then raised this issue in its motion for judgment as a matter of law. We
review a district court’s decision to give a particular jury instruction for an abuse of
discretion. In re Scrap Metal Antitrust Litigation, 527 F.3d 517, 536 (6th Cir. 2008).
We review the denial of a Rule 50(b) motion for judgment as a matter of law de novo.
Radvansky v. City of Olmsted Falls, 496 F.3d 609, 614 (6th Cir. 2007). “The motion
may be granted only if in viewing the evidence in the light most favorable to the non-
No. 12-3130         Freudeman v. Landing of Canton, et al.                         Page 14


moving party, there is no genuine issue of material fact for the jury, and reasonable
minds could come to but one conclusion, in favor of the moving party.” Id. (quotations
omitted). We do not “reweigh the evidence or assess the credibility of witnesses.” Id.

        Punitive damages are designed to punish and deter, not to compensate.
Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St. 3d 638, 651 (1994). Under Ohio law, in
order to recover punitive damages for a negligence claim or a claim under the Patient’s
Bill of Rights, the plaintiff must establish, by clear and convincing evidence, that “the
actions or omissions of [the] defendant demonstrate malice or aggravated or egregious
fraud.” Ohio Rev. Code Ann. §§ 2315.21(C)(1), 2315.21(D)(4), 3721.17(I)(2)(b).
Malice is divided into two categories: “(1) that state of mind under which a person’s
conduct is characterized by hatred, ill will, or a spirit of revenge, or (2) a conscious
disregard for the rights and safety of other persons that has a great probability of causing
substantial harm.” Preston v. Murty, 32 Ohio St. 3d 334, 336 (1987). Here the second
category is at issue.

        The “conscious disregard” type of malice “requires the party to possess
knowledge of the harm that might be caused by his behavior.” Malone v. Courtyard by
Marriott L.P., 74 Ohio St. 3d 440, 446 (1996). Because “it is rarely possible to prove
actual malice otherwise than by conduct and surrounding circumstances,” “actual malice
can be inferred from conduct and surrounding circumstances which may be characterized
as reckless, wanton, willful or gross.” Villella v. Waikem Motors, Inc., 45 Ohio St. 3d
36, 37 (1989) (quotations omitted).

        In this case, the district court found “that the record was replete with evidence
from which a reasonable jury could find for [the] plaintiff on punitive damages.”
R. 329, Memorandum Opinion, PageID # 5640. Specifically, the record reflects that
multiple medication errors occurred prior to the one at issue. Because only 2 LPNs were
responsible to care for 80 residents, the nurses were very rushed. As a result of their
haste, the nurses regularly engaged in the unsafe practice of pre-pouring residents’
medications. The medication cart was “a mess” most of the time. The wrong pills were
found in the medication trays. The nurses would borrow medication from one resident
No. 12-3130         Freudeman v. Landing of Canton, et al.                            Page 15


and give it to another. At the time of her death, over fifty of Dorothy’s pills were
missing. Furthermore, testimony indicated that medical records were routinely falsified
or doctored. On one described occasion, a supervisor altered the records to cover up a
medication error. Staff, including the supervisor, would routinely retroactively fill in
“holes” in the residents’ medication administration records at the end of the month.
Punitive damages are appropriate to punish and deter such conduct. See Moskovitz,
69 Ohio St. 3d at 653 (finding actual malice when a doctor intentionally falsified medical
records to avoid liability).

        While The Landing contends that Freudeman could show only simple negligence,
Freudeman presented sufficient evidence to demonstrate that The Landing consciously
disregarded the rights and safety of its patients with a great probability of causing
substantial harm. The conduct and surrounding circumstances testified to at trial
demonstrate a chaotic environment characterized by hastiness, shortcuts, and casual
coverups. Reasonable minds could find malice based on the evidence presented. We
hold that instructing the jury on punitive damages was not an abuse of discretion and
affirm the district court’s denial of The Landing’s motion for judgment as a matter of
law.

D. Punitive Damages Award

        In Ohio, punitive damages in certain tort actions are subject to a statutory cap of
two times the compensatory damages awarded to the plaintiff. Ohio Rev. Code Ann.
§ 2315.21(D)(2)(a). The pertinent statutory provision reads as follows:

        (D)(1) In a tort action, the trier of fact shall determine the liability of any
        defendant for punitive or exemplary damages and the amount of those
        damages.
        (2) Except as provided in division (D)(6) of this section, all of the
        following apply regarding any award of punitive or exemplary damages
        in a tort action:
                (a) The court shall not enter judgment for punitive or exemplary
                damages in excess of two times the amount of the compensatory
                damages awarded to the plaintiff from that defendant.
No. 12-3130            Freudeman v. Landing of Canton, et al.                                    Page 16


§ 2315.21. If a jury is responsible for determining the amount of punitive damages, the
jury is not informed of the statutory cap. § 2315.21(F).

         In this case, Freudeman brought survival claims (for negligence and violation of
the Patients’ Bill of Rights) for the injuries suffered by Dorothy prior to her death and
a separate wrongful death claim for the injuries suffered by her children. The jury
awarded $400,000 for the survival claims and $280,000 for the wrongful death claim
($70,000 to each child). The jury also awarded $1,250,000 in punitive damages for the
survival claims.

         The Landing contends that for purposes of determining the statutory cap on
punitive damages, the district court should have considered only the damages awarded
to Dorothy’s estate and not the wrongful death damages awarded to her children.
According to this approach, the statutory cap would have been $800,000 (2 x $400,000).
The district court, without discussion, found that this argument was “without merit.”
Since $1,250,000 was less than twice the total amount of compensatory damages
awarded in the lawsuit, the district court did not reduce the punitive damages award.

         Put simply, the question here is whether the compensatory damages awarded for
the wrongful death claim can be considered when determining the statutory cap on the
punitive damages awarded for the survival claims. The answer is no, but to see why, it
is necessary to understand the separate claims brought in this lawsuit. Since this issue
presents a question of law, we approach it de novo. See Cutter v. Wilkinson, 423 F.3d
579, 584 (6th Cir. 2005).

         When a person is killed by the tortious conduct of another, two main causes of
action arise from the incident. See Thompson v. Wing, 70 Ohio St. 3d 176, 179 (1994).
First, the common-law tort action for the decedent’s own injuries suffered before death
survives and can be brought by the executor or administrator of the decedent’s estate.5


         5
          The terminology used to describe this cause of action varies. It has been referred to by the Ohio
Supreme Court as a “survival” action, a “survivorship” action, and a “survivor” action. See Peters v.
Columbus Steel Castings Co., 115 Ohio St. 3d 134, 137 (2007); Hiatt v. S. Health Facilities, Inc., 68 Ohio
St. 3d 236, 236 (1994); Fielder v. Ohio Edison Co., 158 Ohio St. 375, 378 (1952), superseded by statute
on other grounds. Most recently, the court used “survival” action, see Peters, 115 Ohio St. 3d at 137, so
No. 12-3130             Freudeman v. Landing of Canton, et al.                    Page 17


Ohio Rev. Code Ann. § 2305.21; Sinaver v. Szymanski, 14 Ohio St. 3d 51, 55 (1984).
For a survival claim, the decedent’s estate can recover both compensatory and punitive
damages. See Estate of Beavers v. Knapp, 175 Ohio App. 3d 758, 768 (2008). When
bringing a survival claim, the executor or administrator “acts in his official capacity for
the benefit of the decedent’s estate.” Fielder v. Ohio Edison Co., 158 Ohio St. 375, 378
(1952), superseded by statute on other grounds.

         The second available cause of action is for wrongful death. The decedent’s
beneficiaries (as defined by statute) have a statutory cause of action for wrongful death.
Ohio Rev. Code Ann. § 2125.01. A wrongful death claim must be “brought in the name
of the personal representative of the decedent.” § 2125.02(A)(1). The personal
representative “is not the real party in interest but acts merely as a nominal or formal
party or statutory trustee for the statutory beneficiaries who are the real parties.” Kyes
v. Penn. R. Co., 158 Ohio St. 362, 364 (1952). To qualify as a personal representative,
an individual must be court-appointed as the executor or administrator of the decedent’s
estate or as the decedent’s personal representative. Ramsey v. Neiman, 69 Ohio St. 3d
508, 512 (1994).

         Although often the executor of the decedent’s estate and the decedent’s personal
representative are the same person, the Ohio Supreme Court has specified that wrongful
death proceeds are received by this person in his or her capacity as the personal
representative of the decedent, and not in his or her capacity as the executor of the
decedent’s estate. Holt v. Grange Mut. Cas. Co., 79 Ohio St. 3d 401, 407 (1997); see
also Fielder, 158 Ohio St. at 379 (“The administrator or executor is a mere nominal
party to the action, having no interest in the case for himself or the estate he
represents.”). For a wrongful death claim, the beneficiaries can recover “compensatory
damages,” which include damages for loss of support, loss of services, loss of society,
loss of prospective inheritance, and the beneficiaries’ mental anguish. § 2125.02(B).
Punitive damages are not available for a wrongful death claim. See id.; Estate of




that is how we will refer to it.
No. 12-3130           Freudeman v. Landing of Canton, et al.                                  Page 18


Beavers, 175 Ohio App. 3d at 768 (quoting Rubeck v. Huffman, 54 Ohio St. 2d 20, 23
(1978)).

         Although a survival claim and a wrongful death claim are typically pursued by
the same nominal party and must usually be joined in the same action,6 the Ohio
Supreme Court has emphasized that they are separate and independent causes of action.
See Peters v. Columbus Steel Castings Co., 115 Ohio St. 3d 134, 138 (2007). “[I]t is
clear that survival claims and wrongful-death claims are distinct claims that belong to
separate individuals, even though they are generally brought by the same nominal party
(the personal representative of the estate).” Id. “[T]here is no mistaking the independent
nature of these actions.” Id.

         With these background principles in mind, the correct resolution of the issue at
hand becomes more clear. Once again, the question here is whether the compensatory
damages awarded for the wrongful death claim can be combined with the compensatory
damages awarded for the survival claims when determining the statutory cap on the
punitive damages awarded for the survival claims. Apparently no Ohio appellate court
has addressed this issue. However, we do not think the issue is a particularly hard one.
Freudeman was the nominal party who prosecuted all the claims in this case. However,
for the survival claims he sued as executor on behalf of Dorothy’s estate, and for the
wrongful death claim he sued as Dorothy’s personal representative for the benefit of her
beneficiaries. He received the compensatory damages for the survival claims in his
capacity as the executor of Dorothy’s estate, and he received the compensatory damages
for the wrongful death claim in his capacity as Dorothy’s personal representative.

         For the survival claims and the wrongful death claim, both the capacity in which
Freudeman sued and the real parties in interest on whose behalf he sued were different.
The punitive damages statute instructs the trial court to look at “the amount of the




         6
           Ohio’s compulsory joinder rule mandates that a survival claim and a wrongful death claim be
joined in the same action, unless a party or the person to be joined can show good cause why they should
not. Ohio Civ. R. 19.1(a)(1).
No. 12-3130            Freudeman v. Landing of Canton, et al.                                   Page 19


compensatory damages awarded to the plaintiff.”7                          Ohio Rev. Code Ann.
§ 2315.21(D)(2)(a). The real plaintiff for the survival claims was Dorothy’s estate, and
only the compensatory damages awarded to that plaintiff should have been considered
by the district court. In addition to being contrary to the language of the statute,
considering the wrongful death damages so as to expand the statutory cap on punitive
damages would also violate the established principle that punitive damages are not
available for a wrongful death claim.

         Due to the separate claims and the distinct capacities in which Freudeman
pursued them, it was improper for the district court to combine all the compensatory
damages awarded for all the claims in the lawsuit. Instead, to determine the statutory
cap on punitive damages awarded to Dorothy’s estate for its survival claims, the district
court should have considered only the compensatory damages awarded to that plaintiff
for those claims. Since the jury awarded $400,000 in compensatory damages for the
survival claims, the maximum amount of punitive damages permitted by the statutory
cap is $800,000.

                                       III. CONCLUSION

         As explained above, we AFFIRM on the res ipsa loquitur, judicial misconduct,
and punitive-damages instruction issues. On the punitive-damages-cap issue, we
REVERSE and REMAND with an instruction to reduce the punitive damages award
to $800,000.




         7
            At oral argument, Freudeman’s attorney quoted the statute to say “the amount of compensatory
damages awarded to the plaintiffs.” Although most likely the misquote was inadvertent, we believe the
singular form of the word is significant and indicates that when calculating the statutory cap it would be
inappropriate to simply amalgamate all compensatory damages awarded for all claims brought by all
plaintiffs, which is essentially what Freudeman is urging us to do.
