Justices overturn $1 million jury award to former Thomas Hospital nurse

By Kyla Asbury | Nov 21, 2016

CHARLESTON – The West Virginia Supreme Court of Appeals has overturned a $1 million jury verdict that was awarded a former Thomas Memorial Hospital nurse who alleged she was wrongfully fired.

The Nov. 17 opinion stated that jurors in Kanawha Circuit Court did not have enough evidence to rule against the hospital in the 2014 trial in Susan Nutter’s case.

Chief Justice Menis Ketchum authored the majority opinion. Justices Robin Jean Davis and Margaret Workman dissented and authored a separate opinion. Justice Allen Loughry II concurred in part and dissented in part and also filed a separate opinion.

Justice Brent Benjamin did not participate and Raleigh Circuit Judge John A. Hutchison participated in his place.

Ketchum wrote that Kanawha Circuit Judge Tod J. Kaufman, who presided over the case, should have thrown out the case before it went to trial.

After reviewing the eight-day trial transcript, the court reversed the $1,004,900 jury verdict against the hospital and

“We find no evidence to support the jury’s conclusion that the hospital wrongfully discharged the nurse in order to jeopardize or undermine a specific public policy,” the majority opinion states. “We also find insufficient evidence to say the discharge was intended to inflict emotional distress upon the nurse. Further, we find that the nurse’s claim for defamation was barred by a one-year statute of limitation.”

The court also found that the circuit court’s conduct and rulings during the trial undermined the reliability of the jury’s verdict.

“We therefore reverse the jury’s verdict on unpaid wages and remand the case for a new trial on that single issue,” the issue states.

Nutter is a registered nurse and was hired by Thomas in August 2008. She was fired in November 2009.

In February 2009, Thomas placed Nutter on an improvement plan, due to her being “unable to complete tasks in a timely manner; orders not signed off timely; nursing documentation incomplete; [and] lack of daily progress notes.”

In April 2009, Nutter visited Nutter’s human resources department and asked for a transfer to another unit and was told she was not eligible for transfer while she was on an improvement plan.

Nutter successfully completed her improvement plan in May 2009 and in August 2009, she met with her nurse manage for an annual performance evaluation, in which she wrote that she had “good communication with manager.”

On Nov. 16, 2009, the plaintiff was summoned to a meeting in the human resources office with Nutter’s nurse manager, the human resources manager and the acting director of the behavioral health department.

The human resources manager testified that she was conducting the meeting as an investigation into whether Nutter had committed a terminable offense and sought to determine whether the plaintiff could explain away or contradict the pre-meeting evidence.

At the meeting, the three managers discussed an incident that had occurred four days prior with medical documentation and, at the end of the meeting, the managers concluded that Nutter had documented care that she did not give and terminated her employment.

The following day, the chief nursing officer wrote a letter to the West Virginia Board of Examiners for Registered Professional Nurses regarding the incident. She did not advocate for the Board to take action, nor did she include any documents with the letter.

The Board later served a subpoena on the hospital for Nutter’s employment file and also sent Nutter a letter advising her that she should have additional education related to legalities and documentation but that no action would be taken against her license.

On Aug. 11, 2011, Nutter filed a lawsuit in Kanawha Circuit Court alleging that her termination was retaliatory discharge and, after the trial that began April 1, 2014, the jury awarded Nutter the more than $1 million verdict. Thomas Memorial then appealed to the Supreme Court.

The majority wrote that taking the record as a whole, they found the jury’s entire verdict to be inherently unreliable.

“The circuit court erred when it refused to grant Thomas Memorial judgment as a matter of law on the plaintiff’s causes of action for wrongful discharge, intentional infliction of emotional distress and defamation,” the majority opinion states. “The circuit court also erred when it refused to grant the defendant hospital a new trial on the plaintiff’s claim for unpaid wages.”

In her dissenting opinion, Workman, joined by Davis, wrote that she could not and would not agree to join an opinion which “in effect, arrogantly assumes the position that a select group of individuals, namely appellate judges, are better able to determine the credibility of witnesses and the facts of the case than are the group of average citizens who sat as jurors and actually watched the evidence unfold at trial”

“Although the jury system is not perfect, it is clearly the best system in the world for deriving the truth of facts and under proper instruction of law, assessing liability,” she wrote.

Instead, the majority ignores decades of precedence, shows no deference whatsoever to the trial court’s judgment, and presents a complete “gloss job” of the facts, according to Workman’s opinion.

“What is beyond troubling, however, is the majority’s blatant disregard for the jury’s reasoned verdict and patent refusal to apply well-settled law in a neutral way,“ she wrote.

Workman wrote that the majority paid no need to the appropriate role of the court when it reversed the jury and trial court’s decision upon “such lax standards.”

Loughry wrote that while he concurred with the majority’s conclusion on the defamation claim and the intentional infliction of emotional distress claims, he disagreed with the analysis employed by the majority regarding the claims

Loughry wrote that he does not place the blame with jurors, but, instead, he thinks much of the evidence should have never been presented to the jury.

Loughry wrote that he wanted to emphasize his “vehement rejection of the majority’s intrusion into the jury’s deliberations and its self-serving conclusion that the clearly conflicting evidence was simply insufficient to sustain the respondent’s verdict.

“My conclusion that the Harless and intentional infliction of emotional distress claims must be remanded is based upon an error of law that cannot be cured under any view of the evidence presented,” he wrote.

W.Va. Supreme Court of Appeals case number: 15-0695

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