No. 13-0470 – Manor Care, Inc., et al. v. Tom Douglas, individually and on behalf of the
Estate of Dorothy Douglas
                                                                           FILED
                                                                       June 18, 2014
                                                                        released at 3:00 p.m.

                                                                      RORY L. PERRY II, CLERK

                                                                    SUPREME COURT OF APPEALS

                                                                         OF WEST VIRGINIA


Benjamin, Justice, concurring, in part, and dissenting, in part:



              I concur with the majority’s decision to affirm the circuit court’s rulings

finding that the defendants below (“petitioners”) waived the issue of whether the verdict

form disregarded the distinct corporate forms of the petitioners, whether the verdict form

improperly failed to permit the jury to award damages to non-parties, and whether the

MPLA necessarily provides the exclusive remedy for all of the asserted negligence

claims herein. I also concur with the majority’s decision with respect to the dismissal of

the plaintiff’s breach of fiduciary duty claim and NHA claim.1 I dissent, however, from

the majority’s decision regarding the awarding of punitive damages herein. Specifically,

I believe that the verdict form was insufficient to justify the award of any punitive

damages in this case.




              Our jurisprudence requires that


       1
           Although I concur with the manner in which the majority dismisses the
plaintiff/respondent’s NHA claim based upon the facts of this particular case, there are
multiple ways in which the legislative direction in the NHA can be viewed. Accordingly,
I strongly encourage the Legislature to revisit the express language of the NHA and to
clarify its intent and application, particularly with respect to the manner in which the
NHA is limited by the MPLA.
                                              1


              [w]hen this Court, or a trial court, reviews an award of
              punitive damages, the court must first evaluate whether the
              conduct of the defendant toward the plaintiff entitled the
              plaintiff to a punitive damage award under Mayer v. Frobe,
              40 W.Va. 246, 22 S.E. 58 (1895), and its progeny. If a
              punitive damage award was justified, the court must then
              examine the amount of the award pursuant to the aggravating
              and mitigating criteria set out in Garnes v. Fleming Landfill,
              Inc., 186 W.Va. 656, 413 S.E.2d 897 (1991), and the
              compensatory/punitive damage ratio established in TXO
              Production Corp. v. Alliance Resources Corp., 187 W.Va.
              457, 419 S.E.2d 870 (1992).
Syl. pt. 6, Perrine v. E.I. du Pont de Nemours and Co., 225 W.Va. 482, 694 S.E.2d 815

(2010). Pursuant to Syllabus point 4 of Mayer v. Frobe,


              [i]n actions of tort, where gross fraud, malice, oppression, or
              wanton, willful, or reckless conduct or criminal indifference
              to civil obligations affecting the rights of others appear, or
              where legislative enactment authorizes it, the jury may assess
              exemplary, punitive, or vindictive damages; these terms being
              synonymous.
40 W.Va. 246, 22 S.E. 58. (Emphasis added). Accord Syl. pt. 4, Alkire v. First Nat’l Bank

of Parsons, 197 W.Va. 122, 475 S.E.2d 122 (1996). See also W. Va. Code § 16-5C-15(c)

(the NHA authorizes punitive damages for conduct that is “willful or in reckless

disregard of the lawful rights of the resident”).




              As referenced by my colleagues, despite the distressing evidence of

wrongdoing herein, the confused verdict form is woefully inadequate to serve as a proper

legal basis for this Court to sustain the extraordinary damages awarded herein.

Pertaining to the issue of liability for which the majority allows a recovery of damages,

                                              2


the verdict form specifically asked the jury to make a finding as to whether there was

simple “negligence” on the part of the petitioners that substantially contributed to the

death of Dorothy Douglas. Upon such finding, the verdict form requested that the jury

distinguish what percentage of the petitioners’ conduct was “medical negligence” as

compared to ordinary, “non-medical negligence.” The jury was then asked to ascertain

the damages necessary to compensate for such “ordinary negligence.” Nowhere in the

verdict form is the jury asked to make a finding of whether the petitioners’ conduct also

constituted “gross fraud, malice, oppression, or wanton, willful, or reckless conduct or

criminal indifference” to plaintiffs below.           Mayer, supra. The verdict form simply

proceeds to ask the jury whether, based upon “the circumstances of the case,” it found by

a preponderance of the evidence that punitive damages were warranted against the

petitioners. As to a specific finding of conduct sufficient to justify the awarding of

punitive damages, the verdict form is silent.




              As a general rule, a trial court has considerable discretion in determining

what verdict form to use. Franklin D. Cleckley, Robin J. Davis, Louis J. Palmer, Jr.,

Litigation Handbook on West Virginia Rules of Civil Procedure, § 49 (2002). As the

majority points out, this Court has previously declined to find an abuse of discretion on

the part of the trial court for failing to duplicate the language used in a jury instruction on

an essential element of a claim on the verdict form, where, when viewed in the context of

controlling law, the verdict form and the jury charge adequately informed the jury of the

                                                3


issues before it. See Perrine v. E.I. du Pont de Nemours and Co., 225 W.Va. 482, 694

S.E.2d 815. (“In this Court’s view, the criterion for determining whether the discretion is

abused is whether the verdict form, together with any instruction relating to it, allows the

jury to render a verdict on the issues framed consistent with the law, with the evidence,

and with the jury’s own convictions. See 9A Charles Allan Wright & Arthur R. Miller,

Federal Practice and Procedure: Civil 2d § 2508 (1995); Martin v. Gulf States Utilities

Co., 344 F.2d 34 (5th Cir.1965); and McDonnell v. Timmerman, 269 F.2d 54 (8th Cir.

1959”)).2




              However, there are three noteworthy exceptions to this general rule.

Franklin D. Cleckley, Robin J. Davis, Louis J. Palmer, Jr., Litigation Handbook on West

Virginia Rules of Civil Procedure, § 49 (2002) (citing Barefoot v. Sundale Nursing

Home, 193 W. Va. 475, 457 S.E.2d 152 (1995)). The first is where the verdict forms are

compelled by statute. Id. (citation omitted). The second is in cases involving multiple

causes of action. Id. The third exception involves punitive damage cases. Id. (Emphasis

added) (citing Barefoot v. Sundale Nursing Home, 193 W. Va. 475, 457 S.E.2d 152

(1995)). The majority opinion erroneously neglects to give effect to this third exception.




       2
          This Justice was not a participant in the panel which decided the Perrine case,
having disqualified myself due to the involvement in the case of my former law firm and
its client.
                                             4


              In this case, absent any actual finding by the jury that the petitioners

committed an act of “gross fraud, malice, oppression, or wanton, willful, or reckless

conduct or criminal indifference,” we are left with a vague verdict form wherein the only

express findings made by the jury in this case were that the petitioners committed acts of

simple “negligence.” In dismissing the respondent’s NHA claim, the majority aptly notes

similar inadequacies contained in the verdict form in relation to the jury’s inability to

apportion the compensatory damages under the NHA between health-care related and

non-healthcare related claims. However, after finding that this inadequate verdict form

fails to support an award for compensatory damages under the NHA, the majority then

changes course and affirms the jury’s award of punitive damages, ignoring the

insufficient language used in the verdict form for assessing punitive damages, implying

that these inadequacies are somehow “rescued” by virtue of the fact that, among the

myriad of jury instructions it received, the jury was instructed on the Mayer elements.

Where the jury was given instructions on both compensatory damages and punitive

damages, it is a fatal inconsistency of logic in the majority opinion for this Court to

negate some of the awards of compensatory damages based upon an inadequate verdict

form, but not also to negate the award of punitive damages based upon the same

inadequate verdict form. I cannot countenance an opinion which simply picks and

chooses when to rescue an inadequate verdict form and when not to.3



       3
        I believe that as a policy measure, in a large verdict case such as this, where it is
obvious that the jury could have been, and likely was, confused by the insufficient verdict
form in ascertaining the quality of compensatory damages, it is logical to conclude that
                                             5


              Accordingly, it is my opinion that it was improper for the circuit court to

allow a verdict form containing a punitive damages multiplier on a verdict in which the

jury only made findings of simple negligence on the part of the petitioners. For these

reasons, I would reverse the circuit court’s finding on this issue and accordingly vacate

the jury’s award for punitive damages.4 I therefore respectfully concur, in part, and

dissent, in part, to the majority’s decision in this case.




the jury could have also been equally confused as to the precise type of egregious
conduct required to properly warrant a finding of punitive damages.
       4
          Because I do not believe that an award of punitive damages is warranted in this
case, it is unnecessary for me to discuss the analysis of my colleague, Justice Loughry, on
the issue of punitive damages in his dissent.
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