February 19, 2018

Archives for January 29, 2018

Tenth Circuit: Nursing Home Liable for Abuse to Resident

The Tenth Circuit Court of Appeals issued its opinion in Racher v. Westlake Nursing Home Limited Partnership on Thursday, September 28, 2017.

Mrs. Mayberry was abused by two certified nursing assistants while in Quail Creek Nursing Home, which is owned by Westlake. This case was filed against Westlake under Oklahoma law for negligence, negligence per se, and intentional infliction of emotional distress. At trial, the jury found for plaintiffs, Westlake appeals.

The two nursing assistants involved, Kaseke and Gakunga, worked at Quail Creek and were Mayberry’s caretakers. Both assistants had numerous write-ups in their personnel files for infractions and refusal to complete assigned duties, including sleeping on the job, which was grounds for immediate termination; however, neither were terminated for that infraction.

One of Mayberry’s daughters testified that the family began to notice bruising on Mayberry’s hands and arms soon after moving Mayberry to Quail Creek. These concerns went unexplained by Quail Creek. Although it was difficult for Mayberry to communicate due to dementia, Mayberry began to cry out to the family for help and that someone was hurting her mouth. To monitor Mayberry, the family placed a hidden camera in her room. The videos show Gakunga slapping Mayberry, forcibly stuffing Mayberry’s mouth with wadded up gloves, and performing compressions on Mayberry’s chest to force her to empty her bladder. Kaseke is seen watching this take place. Both assistants are seen roughly lifting Mayberry from her wheelchair and pushing her to lay down. Mayberry’s family brought the videos to Quail Creek’s attention. Both assistants were arrested. Mayberry died three months after the abuse was discovered.

Plaintiffs brought suit against Quail Creek due to the abuse that occurred and was perpetrated by Quail Creek employees, and on the grounds that Quail Creek is directly negligent in failing to investigate and report the incidents of abuse. At trial, the jury found that Westlake, the owner of Quail Creek, was liable on theories of negligence and negligence per se, that Westlake acted with reckless disregard for the rights of others, and that plaintiffs were entitled to compensatory damages in the sum of $1.2 million.

Westlake raised four issues on appeal: (1) whether the district court erred by failing to reduce compensatory damages to the statutory cap of $350,000; (2) whether the district court erred by failing to reduce the allegedly excessive compensatory damage award of $1.2 million or, in the alternative, to grant a new trial; (3) whether the district court erred by allowing allegedly improper closing argument regarding punitive damages during the first phase of the trial; and (4) whether the district court erred by admitting evidence of an unrelated incident subject to a limiting instruction.

As for the first issue, Oklahoma law caps noneconomic damages at $350,000 unless special findings are made. The district court concluded that the requirements for lifting the cap were satisfied in this case. The Tenth Circuit affirmed the district court decision. Because Westlake failed to raise the statutory damage cap at any point before the trial was completed, the Tenth Circuit held that Westlake waived the defense.

Next, Westlake argued that the compensatory damages awarded by the jury were excessive and that the district court erred by declining to either reduce the award or grant a new trial. The district court denied this motion because it concluded that there was substantial evidence in the record to support the jury’s award. Oklahoma recognizes a broad jury discretion in determining the amount of damages to award. The Tenth Circuit considered the entire trial record and viewed the evidence in the light most favorable to plaintiffs in concluding that the damages awarded were not excessive. The Circuit found that the jury could have reasonably concluded that Mayberry was abused on a daily basis and that the abuse caused emotional distress that was significant enough to have contributed to her death.

Westlake then argued that the district court erred by allowing counsel for plaintiffs to make arguments that invited an award based on consideration of deterrent and punitive rather than compensatory factors. Although the Tenth Circuit agreed that portions of the argument were improper at the time they were presented, Westlake failed to show that the argument led the jury to return a verdict based on passion or prejudice rather than the evidence presented at trial. The Tenth Circuit noted that not all errors require reversal. In this case, the Circuit found that the jury was not prejudiced by the poorly timed statements regarding the award of punitive damages. The jury was clearly instructed as to the correct procedure and the size of the awards, when considered in the context of the evidence presented at trial. The Tenth Circuit declined to warrant a new trial based on these circumstances.

Lastly, Westlake argued that the district court erred by admitting evidence of another incident subject to a limiting instruction. Prior to trial, Westlake had filed to exclude any evidence that Kaseke caused any physical or mental harm to any residents at Quail Creek on April 4th. This evidence at issue included two more instances of abuse, where two nursing students testified that Gakunga struck Mayberry on the forehead and put her into a cold shower, and Kaseke sprayed an unnamed resident in the face with cold water so violently that the resident’s dentures fell out. The district court denied Westlake’s motion because the evidence would be relevant, not unfairly prejudicial, and admissible if the abuse in Mayberrry’s case occurred after April 4th. The Tenth Circuit agreed with the district court because there was a limiting instruction given to the jury that properly allowed the jury to consider the incidents only if they took place before the alleged abuse of Mayberry.

The Tenth Circuit AFFIRMED the district court’s judgment.

Tenth Circuit: Unpublished Opinions, 1/26/2018

On Friday, January 26, 2018, the Tenth Circuit Court of Appeals issued two published opinions and four unpublished opinions.

Young v. City of Idabel

United States v. Wiles

Hamilton v. Allbaugh

United States v. Janatsch

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.