                                                                                  FILED
                                                                              March 27, 2020
                                                                                 released at 3:00 p.m.
No. 18-0595 Lunsford et al. v. Shy                                           EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA
HUTCHISON, J., concurring in part and dissenting in part:

                I agree with the majority’s legal conclusion that under federal law, and in the

narrow arena of 42 U.S.C. § 1983 claims, a plaintiff may recover punitive damages even

without an award for compensatory damages. The United States Supreme Court recognized

that “punitive damages may be the only significant remedy available in some § 1983

actions where constitutional rights are maliciously violated but the victim cannot prove

compensable injury.” Smith v. Wade, 461 U.S. 30, 55 n.21 (1983) (quoting Carlson v.

Green, 446 U.S. 14, 22 n.9 (1980)). 1 However, the majority’s legal conclusion regarding

section 1983 damages does not address the real problem in the case before us today. There

is more going on here.



                Even a cursory reading of the verdict form shows that the jury’s award is

internally inconsistent. Mr. Shy alleged that the three correctional officers were liable for

their conduct in physically beating him on August 23, 2015. On the verdict form the jury

found that while acting in the scope of their employment, each of the correctional officers

used excessive force on Mr. Shy so as to violate Mr. Shy’s federal Fourteenth Amendment

rights (the claim for which he sought relief under 42 U.S.C. § 1983). The jury also found

that each of the correctional officers committed the state law tort of battery on Mr. Shy.

Next, the jury found that Mr. Shy suffered damages as a proximate result of the officers’



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           I also agree with the majority’s rejection of the petitioner’s PLRA claim.
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conduct. Nonetheless, despite these findings, the jury awarded zero in compensatory

damages. The jury failed to award even a nominal amount for the annoyance and

inconvenience, pain and suffering, or mental anguish that one would expect to result from

being physically beaten and injured. The jury awarded punitive damages only, but punitive

damages are not intended to compensate an injured party; rather, punitive damages are

intended to punish and deter. See, e.g., Smith, 461 U.S. at 49. While there can be a section

1983 case where punitive damages should be awarded in the absence of compensable harm,

this is not one of those cases. The jury found that Mr. Shy did prove a compensable injury,

but because of jury confusion or some other reason, failed to award any compensatory

damages.



              When presented with an inconsistent verdict such as this, instead of searching

for some way to support the inconsistency, the better approach would have been for the

circuit court to re-submit the issue of compensatory damages to the jury. See W.Va. R. Civ.

P. 49(b) (permitting trial court to return the jury for further consideration of inconsistent

answers on verdict form). However, when Mr. Shy’s lawyer made this motion, the

correctional officers objected and the circuit court denied the request.



              There is another obvious problem with the verdict and the majority’s opinion.

The jury found the defendants to be liable on both the federal section 1983 claim and the

state law civil battery claim. Even though punitive damages may be awarded in the absence

of compensatory damages for a section 1983 claim, our well-established state law prohibits

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such an award for a state law claim. See Syl. Pt. 1, Garnes v. Fleming Landfill, Inc., 186

W.Va. 656, 413 S.E.2d 897 (1991) (overruling previous case that allowed jury to return

punitive damages without finding compensatory damages). The majority essentially

assumes that all of the punitive damages awarded in this case were for the section 1983

claim, but there is no evidence or jury interrogatory to support this assumption. This

problem could have been remedied if the trial court would have sent the jury back to

address the issue of compensatory damages or to allocate the punitive damages award, but

that did not occur.



              In my opinion, because of the inconsistency in the verdict form, and because

punitive damages cannot be awarded on a state law claim in the absence of an award of

compensatory damages, this Court should have remanded the case to the circuit court for a

new trial on the issue of damages only. This outcome would have been well-supported by

our law on inadequate damages:

                      In a civil action for recovery of damages for personal
              injuries in which the jury returns a verdict for the plaintiff
              which is manifestly inadequate in amount and which, in that
              respect, is not supported by the evidence, a new trial may be
              granted to the plaintiff on the issue of damages on the ground
              of the inadequacy of the amount of the verdict.

Syl. Pt. 3, Biddle v. Haddix, 154 W.Va. 748, 179 S.E.2d 215 (1971). More recently, in

Gunno v. McNair, 2016 WL 6805006 (W.Va. Nov. 17, 2016) (memorandum decision), a

driver brought a personal injury action against another motorist as the result of a car

accident. The defendant admitted liability. The jury found that the plaintiff was injured as


                                             3
a proximate result of the accident, but awarded her no damages for pain and suffering. This

Court ruled that “[t]he award of zero dollars in damages is inherently inconsistent with the

finding that [the plaintiff] was injured as a proximate result of the accident” and granted

the plaintiff a new trial on damages. Id. at *4.



              Even more on point is the Fourth Circuit Court of Appeals’ opinion in Hafner

v. Brown, 983 F.2d 570 (4th Cir. 1992). In Hafner, a jury assessed punitive damages, but

no compensatory damages, against two police officers who the jury found had used

excessive force during an arrest. Id. at 574. The district court judge deemed the verdict

inconsistent and re-submitted it to the jury. Id. at 575. On appeal, the Fourth Circuit found

no error in the district court’s actions. The Fourth Circuit explained that a trial judge who

“concludes that an inconsistent verdict reflects jury confusion or uncertainty . . . has the

duty to clarify the law governing the case and resubmit the verdict for a jury decision.” Id.

(citation omitted).



              Accordingly, while I concur in the majority’s conclusion regarding the

federal law of damages for 42 U.S.C. § 1983 claims, I respectfully dissent to the majority’s

decision to simply affirm the judgment. I would reverse this damages award and remand

for a new trial solely on the issue of damages.




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