New trial denied in more than $90M nursing home verdict

CHARLESTON - Kanawha Circuit Judge Paul Zakaib Jr. has denied a new trial in a nursing home abuse lawsuit against Heartland of Charleston that resulted in a jury verdict of more than $90 million.

On April 10, Zakaib wrote that the award in this case was not unconstitutional or excessive and was done so to "accomplish punishment and deterrence."

"This verdict sends a clear 'deterrence' message to a multi-million dollar nursing home corporation that its misconduct will not be tolerated in West Virginia," the Circuit Court Garnes Order on Jury Award of Punitive Damages document states.

The lawsuit was filed May 27, 2010, against Manor Care Inc.; HCR Manor Care Services Inc.; Health Care and Retirement Corporation of America LLC; Heartland Employment Services LLC; John Does 1 through 10; and Unidentified Entities 1 through 10 (as to Heartland of Charleston) after Dorothy Douglas suffered dehydration, irreversible change in mental status and acute renal failure during her stay at Heartland of Charleston.

Tom Douglas claimed Dorothy Douglas, his mother, was only a resident of Heartland of Charleston for three weeks, from Sept. 4, 2009, until Sept. 23, 2009. She died shortly after she was transferred from Heartland of Charleston to a Huntington facility on Oct. 11, 2009.

On Oct. 20, 2011, Zakaib Jr. entered the judgment order that reduced a $5 million portion of the award by $405,385 because the portion was subject to the state’s half-million dollar cap on damages in medical malpractice cases.

In August 2011, the jury found Heartland of Charleston had failed to feed and care for Dorothy Douglas, who died of dehydration complications after she left the nursing home.

The jury stated 80 percent of Heartland of Charleston’s fault was ordinary negligence and the other 20 percent was medical negligence. The jury awarded Dorothy Douglas’ family $11.5 million in compensatory damages and $80 million in punitive damages. The trial began July 26, 2011.

On June 28, the parties appeared before the Court for a hearing on the defendants' post-trial motions.

Zakaib's April 10  ruling "denied defendants' Motion for Judgment as a Matter of Law, or in the Alternative for New Trial, or in the Further Alternative for Remittitur, and further denied defendants' Motion to Alter or Amend Judgment on Punitive Damages."

On April 17, a Plaintiff's Motion to Require Defendants to Post an Appeal Bond was filed in Kanawha Circuit Court.

In the conclusion of the Motion, on behalf of Tom Douglas, his counsel wrote that it was anticipated that the defendants will seek a stay of execution while they petition the West Virginia Supreme Court of Appeals for Relief.

Tom Douglas requested that the defendants post an appeal bond for $100,528,523.32, or the calculation as of the day the Court enters its Order, within 10 days of the Court's Order to protect the interests of the plaintiff.

Tom Douglas was being represented by James B. McHugh, Michael J. Fuller Jr. and Amy J. Quezon of McHugh Fuller Law Group PLLC and Paul T. Farrell Jr. of Greene, Ketchum, Bailey, Walker, Farrell & Tweel.

The defendants were represented by Benjamin L. Bailey and Brian A. Glasser of Bailey & Glasser LLP.

Kanawha Circuit Court case number: 10-C-952