Tudor v. Charleston Area Medical Center
Annotate this Case
September 1997 Term
__________
No. 23948
__________
JANA LYNN TUDOR,
Appellant
v.
CHARLESTON AREA MEDICAL CENTER, INC.,
A WEST VIRGINIA CORPORATION,
AND JANICE SMITH,
Appellee
__________________________________________________________________
Appeal from the Circuit Court of Kanawha County
Honorable Lyne Ranson, Judge
Civil Action No. 95-C-227
AFFIRMED, IN PART; REVERSED, IN PART;
AND REMANDED WITH DIRECTIONS
__________________________________________________________________
Submitted: October 7, 1997
Filed: December 16, 1997
Kurt E. Entsminger, Esq. Stephen A. Weber, Esq.
Donald B. O'Dell, Esq. Kevin A. Nelson, Esq.
Lamp, O'Dell, Bartram Kay, Casto, Chaney, Love
& Entsminger & Wise
Huntington, West Virginia Charleston, West Virginia
Attorneys for Appellee Attorneys for Appellant
CHIEF JUSTICE WORKMAN delivered the Opinion of the Court.
JUSTICE MAYNARD dissents and reserves the right to file a dissenting opinion.
SYLLABUS BY THE COURT
1. "In reviewing a trial court's denial of a motion for judgment
notwithstanding the verdict, it is not the task of the appellate court reviewing facts to
determine how it would have ruled on the evidence presented. Its task is to determine
whether the evidence was such that a reasonable trier of fact might have reached the
decision below. Thus, in ruling on a denial of a motion for judgment notwithstanding the
verdict, the evidence must be viewed in the light most favorable to the nonmoving party.
If on review, the evidence is shown to be legally insufficient to sustain the verdict, it is the
obligation of the appellate court to reverse the circuit court and to order judgment for the
appellant." Syl. Pt. 1, in part, Alkire v. First Nat'l Bank, 197 W.Va. 122, 475 S.E.2d 122 (1996).
2. "The rule that an employer has an absolute right to discharge an at will
employee must be tempered by the principle that where the employer's motivation for the
discharge is to contravene some substantial public policy principle, then the employer may
be liable to the employee for damages occasioned by this discharge." Syllabus, Harless
v. First Nat'l Bank, 162 W. Va. 116, 246 S.E.2d 270 (1978).
3. "To identify the sources of public policy for purposes of determining
whether a retaliatory discharge has occurred, we look to established precepts in our
constitution, legislative enactments, legislatively approved regulations, and judicial
opinions." Syl. Pt . 2, Birthisel v. Tri-Cities Health Servs. Corp., 188 W. Va. 371, 424 S.E.2d 606 (1992).
4. "Inherent in the term 'substantial public policy' is the concept that the
policy will provide specific guidance to a reasonable person." Syl. Pt . 3, Birthisel v. Tri-
Cities Health Servs. Corp., 188 W. Va. 371, 424 S.E.2d 606 (1992).
5. West Virginia Code of State Regulations § 64-12-14.2.4 (1987) sets forth
a specific statement of a substantial public policy which contemplates that a hospital unit
will be properly staffed to accommodate the regulation's directive; to ensure that patients
are protected from inadequate staffing practices; and to assure that medical care is
provided to hospital patients, especially children and young adolescents, who must depend
upon others to protect their medical interests and needs.
6. "Where a constructive discharge is claimed by an employee in a retaliatory discharge case, the employee must prove sufficient facts to establish the retaliatory discharge. In addition, the employee must prove that the intolerable conditions
that caused the employee to quit were created by the employer and were related to those
facts that gave rise to the retaliatory discharge." Syl. Pt. 5, Slack v. Kanawha County
Hous. & Redevelopment Auth., 188 W. Va. 144, 423 S.E.2d 547 (1992).
7. "In order to prove a constructive discharge, a plaintiff must establish that
working conditions created by or known to the employer were so intolerable that a
reasonable person would be compelled to quit. It is not necessary, however, that a
plaintiff prove that the employer's actions were taken with a specific intent to cause the
plaintiff to quit." Syl. Pt. 6, Slack v. Kanawha County Hous. & Redevelopment Auth.,
188 W. Va. 144, 423 S.E.2d 547 (1992).
8. "Qualified privileges are based upon the public policy that true
information be given whenever it is reasonable necessary for the protection one's own
interests, the interests of third persons or certain interests of the public. A qualified
privilege exists when a person publishes a statement in good faith about a subject in which
he has an interest or duty and limits the publication of the statement to those persons who
have a legitimate interest in the subject matter; however, a bad motive will defeat a
qualified privilege defense." Syl. Pt. 4, Dzinglski v. Weirton Steel Corp., 191 W. Va.
278, 445 S.E.2d 219 (1994).
9. "The West Virginia Rules of Evidence . . . allocate significant discretion
to the trial court in making evidentiary . . . rulings. Thus, rulings on the admission of
evidence . . . are committed to the discretion of the trial court. Absent a few exceptions,
this Court will review evidentiary . . . rulings of the circuit court under an abuse of
discretion standard." Syl. Pt. 1, in part, McDougal v. McCammon, 193 W. Va. 229, 455 S.E.2d 788 (1995).
10. "'Records made routinely in the regular course of business, at the time
of the transaction or occurrence, or within a reasonable time thereafter, are generally
trustworthy and reliable, and therefore ought to be admissible when properly verified.'
Syl. Pt. 4, State v. Fairchild, 171 W. Va. 137, 298 S.E.2d 110 (1982)." Syl. Pt. 3,
Daniel B. ex rel. Richard B. v. Ackerman, 190 W. Va. 1, 435 S.E.2d 1 (1993).
11. "Where an offer of evidence is made under Rule 404(b) of the West Virginia Rules of Evidence, the trial court, pursuant to Rule 104(a) of the West Virginia Rules of Evidence, is to determine its admissibility. Before admitting the evidence, the trial court should conduct an in camera hearing as stated in State v. Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986). After hearing the evidence and arguments of counsel, the trial court must be satisfied by a preponderance of the evidence that the acts or conduct occurred and that the defendant committed the acts. If the trial court does not find by a
preponderance of the evidence that the acts or conduct w[ere] committed or that the
defendant was the actor, the evidence should be excluded under Rule 404(b). If a
sufficient showing has been made, the trial court must then determine the relevancy of the
evidence under Rules 401 and 402 of the West Virginia Rules of Evidence and conduct the
balancing required under Rule 403 of the West Virginia Rules of Evidence. If the trial
court is then satisfied that the Rule 404(b) evidence is admissible, it should instruct the jury
on the limited purpose for which such evidence has been admitted. A limiting instruction
should be given at the time the evidence is offered, and we recommend that it be repeated
in the trial court's general charge to the jury at the conclusion of the evidence." Syl. Pt.
2, State v. McGinnis, 193 W. Va. 147, 455 S.E.2d 516 (1994).
12. "Because there is a certain openendedness in the limits of recovery for
emotional distress in a retaliatory discharge claim, we decline to automatically allow a
claim for punitive damages to be added to the damage picture. We do recognize that
where the employer's conduct is wanton, willful or malicious, punitive damages may be
appropriate." Syl .Pt. 5, Harless v. First Nat'l Bank, 169 W. Va. 673, 289 S.E.2d 692
(1982).
13. "In permitting recovery for emotional distress without proof of physical trauma when the distress arises out of the extreme and outrageous conduct intentionally
caused by the defendant, damages awarded for the tort of outrageous conduct are
essentially punitive damages. Therefore, in many cases emotional distress damages serve
the policy of deterrence that also underlies punitive damages." Syl Pt. 8, Dzinglski v.
Weirton Steel Corp., 191 W. Va. 278, 445 S.E.2d 219 (1994).
14. In cases where the jury is presented with an intentional infliction of emotional distress claim, without physical trauma or without concomitant medical or psychiatric proof of emotional or mental trauma, i.e. the plaintiff fails to exhibit either a serious physical or mental condition requiring medical treatment, psychiatric treatment, counseling or the like, any damages awarded by the jury for intentional infliction of emotional distress under these circumstances necessarily encompass punitive damages and, therefore, an additional award for punitive damages would constitute an impermissible double recovery. Where, however, the jury is presented with substantial and concrete evidence of a plaintiff's serious physical, emotional or psychiatric injury arising out of the intentional infliction of emotional distress, i.e. treatment for physical problems, depression, anxiety, or other emotional or mental problems, then any compensatory or special damages awarded would be in the nature of compensation to the injured plaintiff(s) for actual injury, rather than serving the function of punishing the defendant(s) and deterring such future conduct, a punitive damage award in such cases would not constitute an impermissible double recovery. To the extent that this holding conflicts with our
decision in Dzinglski v. Weirton Steel Corp., 191 W. Va. 278, 445 S.E.2d 219 (1994),
it is hereby modified.
15. Where a jury verdict encompasses damages for intentional infliction
of emotional distress, absent physical trauma, as well as for punitive damages, it is
incumbent upon the circuit court to review such jury verdicts closely and to determine
whether all or a portion of the damages awarded by the jury for intentional infliction of
emotional distress are duplicative of punitive damages such that some or all of an
additional award for punitive damages would constitute an impermissible double recovery.
If the circuit court determines that an impermissible double recovery has been awarded,
it shall be the court's responsibility to correct the verdict.
Workman, Chief Justice:
This case is before the Court upon the appeal of Charleston Area Medical Center ("CAMC") and Janice Smith ("Appellant Smith")(collectively "Appellants") from the April 15, 1996, final order of the Circuit Court of Kanawha County denying the Appellants' motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial, arising from a December 15, 1995,See footnote 1 1 jury trial wherein a verdict was returned in favor of the Appellee, Jana Lynn Tudor. The jury awarded the Appellee $86,157 in special damages for lost wages, $500,000 in general damages for "damage to professional reputation, emotional distress and mental anguish," $1,000,000 in punitive damages against the Appellant CAMC, and $50,000 in punitive damages against the Appellant, Smith. The Appellants argue on appeal that the trial court erred: 1) in refusing to grant the Appellants' motion for a directed verdict on the Appellee's claim for constructive retaliatory discharge; 2) in submitting the Appellee's claim for tortious interference with employment opportunities to the jury, said claim being unsupported as a matter of law; 3) in failing to grant defendants a directed verdict on the Appellee's libel and slander claims; 4) in permitting the jury to consider the Appellee's invasion of privacy claim, said claim being unsupported as a matter of law; 5) in admitting the de la Torre memorandum into evidence; 6) in admitting the videotape deposition of Betty Tiernan into evidence; and 7)
in submitting the issue of punitive damages to the jury and in failing to grant the
Appellants' remittitur on the emotional distress and punitive damages awards. Based upon
our review of the parties' briefs, arguments, and all other matters submitted before this
Court, we affirm the trial court's decision, with the exception of the trial court's denial of
the Appellants' motion for remittitur, which we reverse.
I. FACTS
The Appellee, Jana Lynn Tudor, was initially employed by CAMC in 1988 as a
registered nurse. From March 11, 1991, until July, 1993, she worked in the Adolescent
Unit ("unit")See footnote 2
2
at Women's and Children's Hospital. Her supervisor while working in this
unit was Appellant Smith, who was also the nurse manager. From the time she began
working in the unit, the Appellee requested the weekend night shiftSee footnote 3
3
and worked it
exclusively until she tendered her resignation in July of 1993.
The Appellee testified that she had also worked under the supervision of Debbie
Carte, who was the nurse manager of the unit prior to Janice Smith. The Appellee stated
that when she worked on the unit under Ms. Carte, she never worked alone, as there was
always another nurse assigned to the unit. Problems on the unit began, according to the
Appellee, when Appellant Smith took over the unit. Under Appellant Smith's supervision,
the Appellee testified that she was assigned to work the unit alone "most of the time."See footnote 4
4
The
Appellee testified that her assignment to work the shift alone raised concerns in her mind
regarding patient safety. She also testified that she "felt like it was inadequate care
because I couldn't be everywhere at one time. . . ."
It is when the Appellee began to voice her concerns about having only one registered nurse assigned to a shift that "things went downhill[,]"according to her testimony. The first time the Appellee voiced her concern to Appellant Smith was in early October 1992. The Appellee testified that she left the unit to go into the Pediatrics Intensive Care Unit ("PICU") to have another nurse witness the Appellee wasteSee footnote 5 5 an unused
portion of a narcotic. According to the Appellee's testimony, Zella White, the nursing
supervisor, came to the unit, found no nurse there, and waited in the unit until the
Appellee emerged from the PICU. Ms. White questioned the Appellee as to why she had
left the unit unattended. The Appellee proceeded to explain to Ms. White why she had left
the unit. The Appellee also testified that she told Ms. White that there should be an
additional nurse or care giver staffed on the unit.
Appellant Smith responded to the incident by issuing the following
memorandum dated November 3, 1992, regarding "[l]eaving unit uncovered. 2 Rns
needed:"
Zella shared . . . [with] me your concern
about not having 2 Rns on & going off the unit to
waste a med. As Zella has already shared . . .
[with] you it was not necessary to leave the unit to
waste a narcotic -- it could have been left in lock
up until supervisor came or when PICU nurse was
free she could have come to you.
Unless the acuity warrents [sic] 2 Rns we
cannot staff consistently . . . [with] 2 Rns -- we
will be adding enough staff to always have 2, but
when census . . . [drops] the 2nd care giver may be
pulled. If you have concerns, please let me know
& I will come in to discuss them . . . [with] you .
. . or if you have literature that supports your
concern, please share it . . . [with] me.
The Appellee testified that she never followed up with Appellant Smith's invitation to
present her with literature supporting her position.See footnote 6
6
The next time the Appellee raised any concern about the staffing problem was
approximately one month later in November. At that time, the Appellee was on the floor
alone when a seventeen-year-old adolescent girl needed to get out of the bed to use the
restroom. The Appellee, without calling for any assistance, in contravention of hospital
policy, got her up out of bed and into the bathroom, where the patient passed out. The
Appellee tried to break the patient's fall; however, the patient hit her head on the floor.
Just as this occurred, Ms. White, once again happened to come on the floor. Ms. White
assisted the Appellee in getting the patient into a wheel chair.
On November 8, 1992, in compliance with hospital policy, the Appellee
completed an incident report. Under the section entitled "Suggestions For Prevention of
Future Occurrences? (Corrective Action Plan)," the Appellee wrote "[a]lways have two
people staffed on floor. . . ." Upon receipt of this incident report, Appellant Smith called
the Appellee into her office, along with Ms. White. According to the Appellee, Appellant
Smith expressed concern to the Appellee about the comments she had written regarding
two individuals staffing the unit.See footnote 7
7
Essentially, Appellant Smith told the Appellee that
staffing had nothing to do with the incident and, accordingly, her comments were
incorrect. The Appellee testified that Appellant Smith got angry and upset with her over
the comments.See footnote 8
8
According to the Appellee, Appellant Smith was so infuriated with her for suggesting on these occasions that two persons should always be assigned to the unit that she retaliated against her. First, according to the Appellee's testimony, Appellant Smith instructed her to engage in unethical nursing practices concerning the disposal of narcotics. While the Appellee testified that it was unethical to lock up the unused portion of the narcotic until either a supervisor or PICU nurse could come to the unit, the Appellee was
unable to cite to any applicable ethical provision or CAMC internal policy that contradicted
Appellant Smith's instructions.
Next, the Appellee alleged that in early 1993, she obtained information from another employee that her evaluation had been downgraded. The Appellee met with Johana McKitrick, the charge nurse at the time, who confirmed to the Appellee that Appellant Smith had requested that her evaluation be changed.See footnote 9 9 The Appellee testified that when she inquired of Ms. McKitrick why this had occurred, Ms. McKitrick responded that, "Jana, I really -- I can't tell you, I don't know. The only thing I can say is, I think she [Appellant Smith] just doesn't like you for some reason, and I can't give you the reason." See footnote 10 10
The Appellee also introduced evidence that during this time period from
November 1992 until July 1993, she made two to three requests to transfer off the unit.
None of these requests resulted in an interview for the position she was attempting to
transfer into. The Appellee, however, had been granted a transfer in September of 1992
into the PICU.See footnote 11
11
The Appellee voluntarily turned down this transfer, even though the
position paid the same salary and included the same benefits as she earned on the unit.
Additionally, the Appellee claimed she was treated unfairly in her requests for vacation
time. She requested the weekend of July 4, 1993, or the following weekend off and was
denied that request. The Appellee testified that "most" of the other requests for time off
during this same time period were granted.See footnote 12
12
The Appellee was absent from her assigned shifts on May 28, 29, and 30,
1993. The Appellee called in sick for those shifts on May 28, 1993. She later presented
a physician's note, dated June 3, 1993, advising her employer that she had been ill on
those days. Under the CAMC attendance policy, which was admitted at trial, missing a
shift scheduled the day before, the day of, or the day after a holiday resulted in two
occasions of absence instead of the usual one. The CAMC attendance policy contained no
provision for excused absences due to illness. Except for eight specifically stated
exclusions from the policy, any day missed is treated as an absence.See footnote 13
13
The Appellee testified that she subsequently decided to leave CAMC and gave her two weeks notice on June 25, 1993. The Appellee testified that her sole reason for submitting her resignation was her belief that staffing on the unit was not going to change. According to Appellant Smith, when an employee terminates employment at CAMC, it is hospital policy that the manager complete a "Personnel Action Form." As part of information provided on that form, the manager is required to state his or her opinion as to whether the employee should be re-hired by CAMC. If the manager's
recommendation is that rehiring of the employee should not occur, the manager must
specifically state reasons for that opinion. Appellant Smith indicated "no" on the form in
response to the inquiry: "rehire? yes or no." The reasons given by Appellant Smith for
that opinion was "absentism" [sic].See footnote 14
14
The Appellant sent the form to the personnel office
for inclusion in the Appellee's permanent personnel file.
At the time the Appellee submitted her resignation, the evidence indicated that she had never been given a written warning for absenteeismSee footnote 15 15 during her five-year tenure at CAMC.See footnote 16 16 On June 28, 1993, however, Ms. McKitrick, the Appellee's charge nurse, issued a written warning to the Appellee for absenteeism. The written warning, prepared by Ms. McKitrick, and signed by Ms. McKitrick and Appellant Smith, indicated that the Appellee had called in the day before a holiday and on the actual holiday and that the Appellee had been warned for this absenteeism offense on February 13, 1993. The Appellee, however, testified that she had never received a verbal warning for absenteeism
on February 13, 1993. Additionally, the Appellee produced the time card for Ms.
McKitrick which indicated that she had not worked on February 13,1993, the day the
verbal warning was purportedly issued. Further, there was evidence that normally the
verbal warnings, while not kept in the personnel file, were kept in departmental files. The
departmental file did not contain a record of the alleged February 1993 verbal warning.
After leaving CAMC, the Appellee applied for various positions at several
health care facilities, including Thomas Memorial Hospital ("Thomas"). The only place
that afforded the Appellee an interview was Thomas. The Appellee interviewed with two
head nurses at Thomas, and both nurses prepared favorable interview forms which
indicated that the Appellee should be hired. Records obtained from Thomas and
introduced at trial indicated that Thomas' personnel office telephoned Linda Honaker, a
personnel assistant at CAMC, requesting a reference for the Appellee. Ms. Honaker
reviewed the Appellee's personnel file and informed the personnel office at Thomas that
the Appellee had resigned and that she was recommended as a "no rehire" due to an
absenteeism problem.See footnote 17
17
Ms. Honaker testified that there was an unwritten agreement with
Thomas and St. Francis that these hospitals, along with CAMC, would release rehire
eligibility information over the telephone, despite the CAMC policy that written
authorization was required before such information would be released.See footnote 18
18
When the Appellee was not hired by Thomas, she testified that she took steps to try to ascertain what type of information CAMC was providing potential employers about her. The Appellee hiredSee footnote 19 19 Documented Reference Check ("D.R.C."), a California company, that performs reference checks to find out what, if any, negative information is being disclosed about a person to potential employers. On October 3, 1994, Eileen de la Torre, a D.R.C. representative, contacted Appellant Smith by telephone requesting employment information about the Appellee.See footnote 20 20 The report indicates that Appellant Smith
told Ms. de la Torre that the Appellee had no noteworthy accomplishments; that her
interpersonal skills with management were poor; that she had a tendency to brood and not
express her needs clearly; that she had an attendance problem; and that Appellant Smith
would not rehire the Appellee.
Appellant Smith vehemently denied ever having a conversation with Ms. de
la Torre. The Appellant testified that the only conversation she ever had with anyone
concerning the Appellee was the conversation previously mentioned, wherein she told
someone at Strategic Ventures, Inc. ("SVI")See footnote 21
21
that the Appellee, while being a good nurse,
did not like to work independently and had an absenteeism problem.See footnote 22
22
Finally, the Appellee offered the videotaped deposition of Betty Tiernan in
evidence over the objection of the Appellants.See footnote 23
23
Ms. Tiernan had been employed as a
nurse in the medical intensive care unit at CAMC's Memorial Division. She had never
worked on the unit with either the Appellant Smith or the Appellee. She testified that she
had also voiced concerns to both supervisors and others at CAMC about one nurse being
assigned to a shift. Ms. Tiernan stated that when she voiced her concerns and complaints,
she was invited to write a policy that would cover staffing and admission issues relating
to her concerns. She was ultimately fired from CAMC for bringing a reporter into a
CAMC management information meeting without the knowledge or permission of the
speaker. She testified that she believed she was fired because she "wrote . . . [a] letter to
the newspaper and drew public attention perhaps in a negative light to CAMC."See footnote 24
24
II. DISCUSSION
A. CONSTRUCTIVE RETALIATORY DISCHARGE
The first assignment of errorSee footnote 25
25
concerns whether the trial court erred in
refusing to grant the Appellants' motion for a directed verdict on the Appellee's claim for
constructive retaliatory discharge. The Appellants contend that the Appellee failed, as a
matter of law, to show that any of her actions were in support of a substantial public policy
of this state and to establish the necessary elements of a constructive retaliatory discharge.
In contrast, the Appellee maintains that the trial court did not err in submitting her claim
to the jury because substantial public policies were involved in this case and ample
evidence to sustain the finding of a constructive discharge was presented to the jury.
Before undertaking a review of the error alleged, we set forth the standard
of review to be utilized in syllabus point one of Alkire v. First National Bank, 197 W.Va.
122, 475 S.E.2d 122 (1996):
In reviewing a trial court's denial of a motion for
judgment notwithstanding the verdict, it is not the
task of the appellate court reviewing facts to
determine how it would have ruled on the evidence
presented. Its task is to determine whether the
evidence was such that a reasonable trier of fact
might have reached the decision below. Thus, in
ruling on a denial of a motion for judgment
notwithstanding the verdict, the evidence must be
viewed in the light most favorable to the
nonmoving party. If on review, the evidence is
shown to be legally insufficient to sustain the
verdict, it is the obligation of the appellate court to
reverse the circuit court and to order judgment for
the appellant.
197 W. Va. at 124, 475 S.E.2d at 124, Syl. Pt. 1, in part. Further, in Dodrill v. Nationwide Mutual Insurance Co., ___ W. Va. ___, 491 S.E.2d 1 (1996), we stated that
"[e]ssentially, the same rules apply where motions for a directed verdict are implicated."
Id. at ___, 491 S.E.2d at 9.
In order to prevail under a constructive retaliatory discharge theory, the
Appellee must prove that a "substantial public policy" of this state has been violated. As
this Court held in the syllabus of Harless v. First National Bank ("Harless I"), 162 W.
Va. 116, 246 S.E.2d 270 (1978):
The rule that an employer has an absolute
right to discharge an at will employee must be
tempered by the principle that where the
employer's motivation for the discharge is to
contravene some substantial public policy principle,
then the employer may be liable to the employee
for damages occasioned by this discharge.
Id. at 116, 246 S.E.2d at 271. "To identify the sources of public policy for purposes of
determining whether a retaliatory discharge has occurred, we look to established precepts
in our constitution, legislative enactments, legislatively approved regulations, and judicial
opinions." Syl. Pt. 2, Birthisel v. Tri-Cities Health Servs. Corp., 188 W. Va. 371, 424 S.E.2d 606 (1992). Finally, "[i]nherent in the term 'substantial public policy' is the
concept that the policy will provide specific guidance to a reasonable person." Id. at 372,
424 S.E.2d at 607, Syl. Pt. 3.
In numerous prior decisions, this Court has identified specific instances of what qualifies as substantial public policy. See, e.g., Syl. Pt. 4, Page v. Columbia Natural Resources, Inc., 198 W. Va. 378, 480 S.E.2d 817 (1996) (finding substantial public policy violation when at-will employee was discharged based on concern that employee has given or may be called to give truthful testimony in legal action); Syl. Pt. 4, Roberts v. Adkins, 191 W. Va. 215, 444 S.E.2d 725 (1994) (holding that cause of action for wrongful discharge may exist under West Virginia Code § 21-5-5, which sets forth criminal liability for employers who coerce employees to purchase goods in lieu of wages); Slack v. Kanawha County Hous. & Redevelopment Auth., 188 W. Va. 144, 423 S.E.2d 547 (1992) (finding generally that substantial public policy implicated where employee brings attention of federal prosecutors to improprieties in operation of housing authority); Syl. Pt. 2, Lilly v. Overnight Transp. Co., 188 W. Va. 538, 425 S.E.2d 214 (1992) (holding that substantial public policy is predicated upon West Virginia Code § 17C-15-1(a), § 17C-15- 31 and § 24A-5-5(j), relating to operation of motor vehicle with brakes in unsafe working condition); Syl. Pt. 2, Collins v. Elkay Mining Co., 179 W. Va. 549, 371 S.E.2d 46 (1988) (holding that substantial public policy arises from West Virginia Mine Safety Act, West Virginia Code § 22A-1A-20); Syl. Pt. 2, McClung v. Marion County Comm'n, 178 W. Va. 444, 360 S.E.2d 221 (1987) (holding that substantial public policy is grounded in Wage and Hour Act, West Virginia Code § 21-5C-8); Syl. Pt. 2, Shanholtz v. Monongahela Power Co., 165 W. Va. 305, 270 S.E.2d 178 (1980) (holding that
substantial public policy arises from Workers' Compensation Act, West Virginia Code §
23-5A-1).
In the present case, the Appellee maintains that a substantial public policy
emanates from West Virginia Code of State Regulations § 64-12-14.2.4(1987),See footnote 26
26
which is
a regulation promulgated by the West Virginia Board of Health and is part of a regulatory
scheme governing the licensure of hospitals.See footnote 27
27
That regulation provides that:
14.2.4. There shall be an adequate number
of licensed registered professional nurses to meet
the following minimum staff requirements:
. . . .
d. A registered professional nurse shall be
on duty and immediately available for bedside care
of any patient when needed on each shift, 24 hours
per day and seven days a week.
e. Licensed practical nurses as needed to
supplement registered professional nurses in
appropriate ratio to professional nurses.
f. Auxiliary workers as needed to provide
physical care and assist with simple nursing and
clerical procedures not requiring professional
nurses.
Id. The above-referenced regulation not only mandates that an "adequate" number of
registered nurses be available to meet "minimum" staffing requirements, but it also
mandates that "[a] registered professional nurse shall be . . . immediately available for
bedside care of any patient when needed . . . ." Id. (emphasis added).See footnote 28
28
The Appellants maintain that because this regulation is "too general to provide any specific guidance or is so vague that it is subject to different interpretations[,]" they should not be exposed to liability under this Court's pronouncements in Birthisel.See footnote 29 29 See 188 W. Va. at 377, 424 S.E.2d at 612. In Birthisel, the plaintiff relied upon general admonitions relating to the requirement of good care for patients by social workers found
in regulations established by the West Virginia Social Work Board as a basis for her
retaliatory discharge claim, when she was forced to resign because of her failure to
transfer data from various records onto master treatment plans. Finding that those general
admonitions "contain[ed] no specific provision relating to a patient's record review" and
were "extremely general," this Court concluded that the regulations "d[id] not constitute
a specific statement of public policy." Id. at 379, 424 S.E.2d at 614. In arriving at this
conclusion, we further noted in Birthisel, however, that "'[t]he employer is bound, at a
minimum, to know the fundamental public policies of the state and nation as expressed in
their constitutions and statutes[.]'" Id. at 377, 424 S.E.2d at 612 (quoting Gantt v. Sentry
Ins. Co., 1 Cal. 4th 1083, 1095, 4 Cal. Rptr. 2d 874, 882, 824 P.2d 680, 688 (1992)).
In the instant case, it does not take an in-depth analysis for this Court to hold that West Virginia Code of State Regulations § 64-12-14.2.4 sets forth a specific statement of a substantial public policy which contemplates that a hospital unit will be properly staffed to accommodate the regulation's directive; to ensure that patients are protected from inadequate staffing practices; and to assure that medical care is provided to hospital patients, especially children and young adolescents, who must depend upon others to protect their medical interests and needs.See footnote 30 30
We now turn to whether the Appellee established the necessary elements of
a constructive retaliatory discharge. The Appellants argue that there is a complete absence
of factual elements which substantiates a constructive discharge. The Appellants further
allege that the Appellee was never threatened with discharge and was never urged to
resign. Her pay and benefits were never reduced. Her job responsibilities were not
altered in any way and there was no evidence of an unfair or unfavorable job. In other
words, the Appellants argue that there was a lack of any evidence that the Appellee was
involuntarily subjected to employment conditions that would force a reasonable person to
end their employment, or that the conditions imposed upon her were different than those
placed upon other employees. In contrast, the Appellee contends that there was ample
evidence to sustain the jury's finding of a constructive discharge.
Under the law enunciated by this Court in Slack v. Kanawha County Housing
& Redevelopment Authority, 188 W. Va. 144, 423 S.E.2d 547 (1992):
[w]here a constructive discharge is claimed
by an employee in a retaliatory discharge case, the
employee must prove sufficient facts to establish
the retaliatory discharge. In addition, the employee
must prove that the intolerable conditions that
caused the employee to quit were created by the
employer and were related to those facts that gave
rise to the retaliatory discharge.
In order to prove a constructive discharge,
a plaintiff must establish that working conditions
created by or known to the employer were so
intolerable that a reasonable person would be
compelled to quit. It is not necessary, however,
that a plaintiff prove that the employer's actions
were taken with a specific intent to cause the
plaintiff to quit.
Id. at 146, 423 S.E.2d at 549, Syl. Pts. 5 and 6.
In the present case, the evidence presented by the Appellee revealed that she regularly worked her shifts for over two years alone, without either another nurse or care giver to assist her. Moreover, at times, she was left alone on her shift to care for up to nine seriously ill patients. During this time period, the evidence indicated that the Appellee raised her concerns about the staffing situations to other nurses who worked in the unit. Twelve nurses on this unit ultimately requested and received transfers to other CAMC units. Moreover, after November 1992, the evidence established that she was the recipient of reprisals for voicing concerns about the staffing situation. First, she was reprimanded by Appellant Smith for placing those concerns in an incident report. Appellant Smith testified that she became angry with the Appellee over the comments. The evidence further revealed that in early 1993, Appellant Smith directed that the Appellee's spring evaluation be downgraded, allegedly as a result of the complaints she
made, which reduced her merit raise. The Appellee presented additional evidence that her
requests for vacation timeSee footnote 31
31
and her attempts to transfer to other units were denied.See footnote 32
32
Finally, the Appellee testified that these working conditions became intolerable. She stated
that she felt like the conditions were never going to change and that professionally and
ethically, "I couldn't be a part of that."
In viewing the evidence in the light most favorable to the Appellee, who was
the nonmoving party, it is clear that the Appellee presented sufficient evidence of
constructive retaliatory discharge to send the issue to the jury.See footnote 33
33
See Alkire, 197 W. Va.
at 124, 475 S.E.2d at 124, Syl. Pt. 1, in part. Consequently, we conclude that the trial
court did not err in refusing to direct a verdict in favor of the Appellants on this issue.
B. TORTIOUS INTERFERENCE
The next alleged error concerns whether the trial court erred in submitting
the Appellee's tortious interference with employment opportunities claim for jury
determination. The Appellants maintain that the Appellee's claim was based upon her
allegation that CAMC and Janice Smith provided adverse information to prospective
employers regarding the Appellee's employment with CAMC. The Appellants contend,
however, that the Appellee produced no definitive evidence that Appellant Smith ever
communicated with a prospective employer about the Appellee and that the only evidence
as to any communication by CAMC was the information conveyed to Thomas by Ms.
Honaker, a personnel assistant at Women's and Children's, in response to an inquiry
specifically authorized by the Appellee. With regard to the information provided by Ms.
Honaker, the Appellants argue that it cannot form the basis for liability against CAMC
because such information was protected by a release signed by the Appellee, was
privileged, and was not tortious, because it was completely true. The Appellee contends,
however, that the release provision on the Thomas application form did not absolve the
Appellants of liability for wrongful conduct and that no qualified privilege applied to the
Appellants' malicious conduct against the Appellee.
This error is predicated upon the following releaseSee footnote 34 34 executed by the Appellee when she completed the employment application with Thomas: "I hereby authorize Herbert J. Thomas Memorial Hospital to make a thorough investigation of my past employments and all the facts stated on my application for employment. I release from all liability or responsibility all persons, places of business, and municipalities supplying such information." It is well established in this jurisdiction that when a person gives another entity a release, the release does not absolve a party from liability for the party's intentional, reckless or grossly negligent conduct. See Murphy v. North Am. River Runners, Inc., 186 W. Va. 310, 316, 412 S.E.2d 504, 510 (1991) (stating that "a general clause in an exculpatory agreement or anticipatory release exempting the defendant from all liability for any future negligence will not be construed to include intentional or reckless
misconduct or gross negligence, unless such intention clearly appears form the
circumstances") (citing Restatement (Second) of Torts § 496B cmt. d (1963, 1964)).
Moreover, "in order for the express agreement . . . [to 'release from all liability or
responsibility all persons, places or business, and municipalities supplying such
information'] to be effective, it must also appear that its terms were intended by both
parties to apply to the particular conduct of the defendant which has caused the harm."See footnote 35
35
186 W. Va. at 316, 412 S.E.2d at 510.
It is undeniable that when the Appellee signed the above-mentioned information, she was not giving the Appellants carte blanche authorization to release false information about her.See footnote 36 36 Further, the Appellee presented testimony from Appellant Smith herself that she had conveyed information to a potential employer over the phone, in
violation of hospital policy, that the Appellee had an absenteeism problem and was a "no
rehire" at CAMC. The evidence presented at trial demonstrated that the same employment
information was conveyed by Ms. Honaker to Thomas.
With regard to the qualified privilege claimed by the Appellants,
[q]ualified privileges are based upon the
public policy that true information be given
whenever it is reasonably necessary for the
protection of one's own interests, the interests of
third persons or certain interests of the public. A
qualified privilege exists when a person publishes
a statement in good faith about a subject in which
he has an interest or duty and limits the publication
of the statement to those persons who have a
legitimate interest in the subject matter; however,
a bad motive will defeat a qualified privilege
defense.
Syl Pt. 4, Dzinglski v. Weirton Steel Corp., 191 W. Va. 219, 445 S.E.2d 219 (1994).
There was ample evidence presented to the jury from which it could find that the Appellants acted with a "bad motive" towards the Appellee.See footnote 37 37 This evidence included Appellant Smith's testimony that she was upset and angry when the Appellee stated in an incident report that the reason a patient fell was due to inadequate staffing. There was
also evidence of: the Appellee's requests for transfers and vacation requests that were
denied; the Appellee's narrative performance evaluation which was favorable; but, the
accompanying numerical evaluation which was average, purportedly due to Appellant
Smith's request that the evaluation be downgraded; Appellant Smith's violation of
CAMC's confidentiality policies when she shared negative information about the
Appellee's employment at CAMC over the telephone with a third-party outside CAMC;
and the fact that the Appellee had no negative history of absenteeism in her personnel file
until Appellant Smith placed it there after the Appellee had tendered her resignation which
was also the same day that Appellant Smith indicated that the Appellee was a "no rehire"
due to absenteeism. Thus, there was a basis upon which the jury could have concluded
that collectively this evidence revealed ill-will or malice between Appellant Smith and the
Appellee. This "bad motive" would necessarily defeat any qualified privilege defense
asserted by the Appellants. Thus, the trial court did not err in submitting the tortious
interference claim to the jury.
C. ALLEGED EVIDENTIARY ERRORS
The Appellants maintain that the trial court committed reversible error in admitting the de la Torre memorandum and in admitting the videotaped deposition of Betty Tiernan into evidence. It is important to note that
[t]he West Virginia Rules of Evidence . . .
allocate significant discretion to the trial court in
making evidentiary . . . rulings. Thus, rulings on
the admission of evidence . . . are committed to the
discretion of the trial court. Absent a few
exceptions, this Court will review evidentiary . . .
rulings of the circuit court under an abuse of
discretion standard.
Syl. Pt. 1, in part, McDougal v. McCammon, 193 W. Va. 229, 455 S.E.2d 788 (1995).
With regard to the de la Torre memorandum, the Appellants assert that it was irrelevant, highly prejudicial and did not fall within the business records exceptionSee footnote 38 38 to the hearsay rule. First, the relevancy issue is easily resolved based upon our prior decision in McDougal, where we stated:
Rule 401 provides: "'Relevant evidence' means
evidence having any tendency to make the
existence of any fact that is of consequence to the
determination of the action more probable or less
probable than it would be without the evidence."
Under Rule 401, evidence having any probative
value whatsoever can satisfy the relevancy
definition. Obviously, this is a liberal standard
favoring a broad policy of admissibility. For
example, the offered evidence does not have to
make the existence of a fact to be proved more
probable than not or provide a sufficient basis for
sending the issue to the jury.
Id. at 236, 455 S.E.2d at 795. It is clear the report was properly admitted under West
Virginia Rules of Evidence 401 and 402. The report demonstrated that Appellant Smith
exhibited ill-will toward the Appellee. Further, it was relevant with regard to the
Appellee's intentional infliction of emotion distress claim insofar as it clearly revealed the
wrongful and deliberate sharing of the Appellee's negative employment history with a
party outside of CAMC which was in clear violation of hospital policy.
Moreover, the report was properly admitted under the business record
exception to the hearsay rule. See W. Va. R. Evid. 803(6). This Court has held that
"Records made routinely in the regular
course of business, at the time of the transaction or
occurrence, or within a reasonable time thereafter,
are generally trustworthy and reliable, and
therefore ought to be admissible when properly
verified." Syl. Pt. 4, State v. Fairchild, 171 W.
Va. 137, 298 S.E.2d 110 (1982).
Syl. Pt. 3, Daniel B. ex rel. Richard B. v. Ackerman, 190 W. Va. 1, 435 S.E.2d 1 (1993).
In this case, Michael Rankin, the Chief Service Officer of D.R.C., testified
that the de la Torre memorandum was prepared in the regular course of D.R.C.'s business
activities on the same day that the reference check occurred. The report was prepared
from the transcription notes taken during the reference check and the report was closely
reviewed by the D.R.C. representative, in this case de la Torre, and a supervisor. Finally,
in order to assure the accuracy of the report, it must be signed by the D.R.C.
representative, in this case Ms. de la Torre, under penalty of perjury.See footnote 39
39
Consequently, we
cannot conclude that the trial court erred in admitting the de la Torre memorandum.
Next, the Appellants also assert that the Betty Tiernan videotaped deposition was improperly admitted under West Virginia Rule of Evidence 404(b)See footnote 40 40 as similar acts
evidence to prove CAMC's improper motive and intent concerning the Appellee. The
Appellants argue that not only did the trial court fail to conduct an in camera hearing, but
that Ms. Tiernan's testimony failed to meet the requisites set forth in State v. McGinnis,
193 W. Va. 147, 455 S.E.2d 516 (1994), for the evidence to be admissible.See footnote 41
41
In contrast,
the Appellee maintains that the evidence was properly admitted under Rule 404(b) to show
the following:
1. That similar to Jana Tudor, Betty Tiernan was
formerly employed as a nurse by CAMC.
2. That similar to Jana Tudor, Betty Tiernan
voiced complaints to CAMC about unsafe staffing
practices on her unit.
3. That similar to Jana Tudor, Betty Tiernan's
complaints related to the practice of assigning only
one nurse on a unit.
4. That similar to Jana Tudor, Betty Tiernan was
forced to leave her employment within a few
months after making these staffing complaints.
5. That similar to Jana Tudor, Betty Tiernan
subsequently encountered difficulties in finding
other nursing employment in the Kanawha Valley
area.
In McGinnis,See footnote 42
42
we set forth the following procedure for evaluating the
admissibility of Rule 404(b) evidence:
Where an offer of evidence is made under
Rule 404(b) of the West Virginia Rules of
Evidence, the trial court, pursuant to Rule 104(a)
of the West Virginia Rules of Evidence, is to
determine its admissibility. Before admitting the
evidence, the trial court should conduct an in
camera hearing as stated in State v. Dolin, 176
W.Va. 688, 347 S.E.2d 208 (1986). After hearing
the evidence and arguments of counsel, the trial
court must be satisfied by a preponderance of the
evidence that the acts or conduct occurred and that
the defendant committed the acts. If the trial court
does not find by a preponderance of the evidence
that the acts or conduct was committed or that the
defendant was the actor, the evidence should be
excluded under Rule 404(b). If a sufficient
showing has been made, the trial court must then
determine the relevancy of the evidence under
Rules 401 and 402 of the West Virginia Rules of
Evidence and conduct the balancing required under
Rule 403 of the West Virginia Rules of Evidence.
If the trial court is then satisfied that the Rule
404(b) evidence is admissible, it should instruct the
jury on the limited purpose for which such
evidence has been admitted. A limiting instruction
should be given at the time the evidence is offered,
and we recommend that it be repeated in the trial
court's general charge to the jury at the conclusion
of the evidence.
Id. at 151, 455 S.E.2d at 520, Syl. Pt. 2.
Contrary to the Appellants' assertion, the trial court conducted an in camera
hearing, wherein the court allowed the parties to submit briefs on the admissibility of this
evidence, as well as to present oral argument on the issue. Further, the trial court
reviewed the videotape and read the accompanying transcript prior to making its ruling.
Upon this careful review of the evidence, the trial court concluded:
I think based on the evidence that has been
presented to the Court that I am prepared to make
a finding that first of all, only as to the defendant
CAMC - not as to the defendant Janice Smith, the
defendant CAMC - that there certainly is more than
a preponderance of the evidence that the defendant
committed these acts.
I find that they in fact are similar in nature
to the conduct, at least on certain of the counts or
elements in this plaintiff's case. I am willing and
will be telling -- well, first of all, under 403, the
Court finds that they are more relevant than they
are prejudicial. Probative value is that which has
been enumerated in all these in all these briefs and
which I will be incorporating into an order.
I think this has been one matter that has been
fully briefed by both sides. The Court will tell the
jury that they can only consider this as to CAMC
defendant and only on the issue of intent, motive
and state of mind.
Based upon a review of the record in this case, this Court concludes that the
lower court properly followed the procedure established by McGinnis for evaluating the
admissibility of the similar acts evidence under West Virginia Rule of Evidence 404(b).
Consequently, the trial court did not abuse its discretion in allowing the evidence to be
admitted.See footnote 43
43
D. EMOTIONAL DISTRESS AND
PUNITIVE DAMAGES AWARD
The last issue concerns whether the trial court erred in failing to grant the Appellants' motion for remittitur on the emotional distress and punitive damages awards.See footnote 44 44 The Appellants assert that the circuit court failed to recognized the dangers warned of by
this Court in Harless v. First National Bank ("Harless II"), 169 W. Va. 673, 289 S.E.2d 692 (1982), and Dzinglski,See footnote 45
45
which were manifested in the jury's verdict. The Appellants
maintain that "[t]he . . . [Appellee's] paucity of evidence regarding the alleged emotional
distress she suffered makes it obvious that, on its face, the jury's award of $500,000 in
damages for this claim was excessive and necessarily contained a punitive element." The
Appellee, however, asserts that the award of punitive damages was consistent with this
Court's decision in Harless II.
Much confusion has arisen regarding whether an award of punitive damages
can be made where damages for intentional infliction of emotional distress have already
been awarded. Today, we attempt to resolve this confusion. We begin by reexamining
the first case in which we held that both damages for intentional infliction of emotional
distress and punitive damages could be awarded. In Harless II, we held in syllabus point
five that:
Because there is a certain openendedness in
the limits of recovery for emotional distress in a
retaliatory discharge claim, we decline to
automatically allow a claim for punitive damages to
be added to the damage picture. We do recognize
that where the employer's conduct is wanton,
willful or malicious, punitive damages may be
appropriate.
169 W. Va. at 674, 289 S.E.2d at 694, Syl. Pt. 5. We further stated that "'[t]he recovery
for emotional distress as well as other compensatory damages such as lost wages should
adequately compensate the plaintiff." Id. at 692, 289 S.E.2d at 703. We also cautioned
that "a claim for emotional distress without any physical trauma may permit a jury to have
a rather open-hand in the assessment of damages. Additionally, a jury may weigh the
defendant's conduct in assessing the amount of damages and to this extent[,] emotional
distress damages may assume the cloak of punitive damages." Id. at 690, 289 S.E.2d at
702.
More recently, however, in syllabus point eight of Dzinglski, we held:
In permitting recovery for emotional distress
without proof of physical trauma when the distress
arises out of the extreme and outrageous conduct
intentionally caused by the defendant, damages
awarded for the tort of outrageous conduct are
essentially punitive damages. Therefore, in many
cases emotional distress damages serve the policy
of deterrence that also underlies punitive damages.
191 W. Va. at 281, 445 S.E.2d at 222, Syl Pt. 8. This holding in Dzinglski was predicated upon language from our previous decision in Mace v. Charleston Area Medical Center Foundation, Inc., 188 W. Va. 57, 422 S.E.2d 624 (1992), wherein we expressed "our concern that in cases where damages for emotional distress are sought, 'a claim for emotional distress without any physical trauma may permit a jury to have a rather open-
hand in the assessment of damages.'" 191 W. Va. at 288, 445 S.E.2d at 229 (quoting
Harless II, 169 W. Va. at 690, 289 S.E.2d at 702); see also Wells v. Smith, 171 W. Va.
97, 104, 297 S.E.2d 872, 879 (1982) overruled on other grounds by Fleming Landfill,
Inc., 186 W. Va. 656, 413 S.E.2d 897 (1991) (recognizing that cause of action for tort of
outrageous conduct permits recovery of damages for emotional distress without proof of
physical trauma where distress arises out of extreme and outrageous conduct intentionally
or recklessly caused by defendant and that "[d]amages awarded for the tort of outrageous
conduct are essentially punitive damages").
In Dzinglski, the lower court allowed the issue of punitive damages to go
to the jury; however, the lower court struck the award of punitive damages based upon the
defendant's post-trial motion objecting to the award. Specifically, we stated that
[b]y allowing the jury to consider punitive
damages, the trial court permitted the jury to stack
punitive damages upon punitive damages, thereby
effectively imposing two punitive damage verdicts
against Weirton Steel for the same acts. The trial
court's decision to dismiss Mr. Dzinglski's claim
for punitive damages correctly avoided this double
recovery.
191 W. Va. at 288, 445 S.E.2d at 229.
The quandary results because, according to Harless II, there are cases where both damages for intentional infliction of emotional distress and punitive damages are proper; but, by the same token, under Dzlinglski, there are also circumstances where punitive damages are to be considered double recovery where damages for intentional infliction for emotional distress with no physical trauma are also awarded by the jury. In attempting to clarify the law on this issue, we focus on a delineation of specific circumstances under which jury awards for both intentional infliction of emotional distress and punitive damages will be considered a double recovery.See footnote 46 46
This issue arises in connection with claims of intentional infliction of
emotional distress without proof of physical injury. See Harless II, 169 W. Va. at 690,
289 S.E.2d at 702 and Dzlingski, 191 W. Va. at 281, 445 S.E.2d at 222. In cases where
the jury is presented with an intentional infliction of emotional distress claim, without
physical trauma or without concomitant medical or psychiatric proof of emotional or
mental trauma, i.e. the plaintiff fails to exhibit either a serious physical or mental condition
requiring medical treatment, psychiatric treatment, counseling or the like, any damages
awarded by the jury for intentional infliction of emotional distress under these
circumstances necessarily encompass punitive damagesSee footnote 47
47
and, therefore, an additional
award for punitive damages would constitute an impermissible double recovery. Where, however, the jury is presented with substantial and concrete evidence of a plaintiff's serious physical, emotional or psychiatric injury arising out of the intentional infliction of emotional distress, i.e. treatment for physical problems, depression, anxiety, or other emotional or mental problems, then any compensatory or special damages awarded would be in the nature of compensation to the injured plaintiff(s) for actual injury, rather than serving the function of punishing the defendant(s) and deterring such future conduct, a punitive damage award in such cases would not constitute an impermissible double recovery. To the extent that this holding conflicts with our decision in Dzlingski, it is hereby modified. See 191 W. Va. at 281, 445 S.E.2d at 222, Syl. Pt. 8. Where a jury verdict encompasses damages for intentional infliction of emotional distress, absent physical trauma, as well as for punitive damages, it is incumbent upon the circuit court to review such jury verdicts closely and to determine whether all or a portion of the damages awarded by the jury for intentional infliction of emotional distress are duplicative of punitive damages such that some or all of an additional award for punitive damages would constitute an impermissible double recovery. If the circuit court determines that an
impermissible double recovery has been awarded, it shall be the court's responsibility to
correct the verdict.
This holding is in no way to be construed as requiring corroboration of a
plaintiff's intentional infliction of emotional distress claim, nor are we requiring the
introduction of expert testimony to prove the plaintiff's claim. See Slack, 188 W. Va. at
152, 423 S.E.2d at 555; Syl. Pt. 4, Tanner v. Rite Aid of West Virginia, 194 W. Va. 643,
461 S.E.2d 149 (1995). All that we intend from this decision is that in order to collect
damages for intentional infliction of emotional distress, as well as punitive damages in the
same action, the jury must be presented with some quantifiable measure of compensatory
damages sustained from the intentional infliction of emotional distress so that it is clear that
those damages are not duplicative punitive damages.
The evidence presented by the Appellee in the instant case with regard to the mental and emotional damages she sustained was scant. The Appellee testified that "[t]hey [the Appellants] destroyed my professional reputation" and how she trusts people, that "they probably tore me down as a person, I think," and that "I just am not happy, I'm depressed most of the time." Additionally, the Appellee's mother, with whom the Appellee resides, testified that her daughter was a "completely different person" who
didn't trust her family anymore because of what occurred. She also stated that her daughter
had become irritable and withdrawn.
In light of the paucity of evidence presented by the Appellee with regard to the mental and psychological damages sustained as a result of the Appellants' actions, this case presents a prime example of the type of case originally contemplated by this Court in Dzlinglski,See footnote 48 48 where the compensatory damages awarded for intentional infliction of emotional distress are indeed punitive in nature.See footnote 49 49 It is clear that in its award of damage for the Appellee's emotional distress, the jury was, in effect, punishing the Appellants for their intentional and outrageous conduct. Accordingly, the trial court erred in not granting the Appellants' motion for remittitur setting aside the punitive damages awards entered against them on the grounds that punitive damages are duplicative of the jury's award of
damages for intentional infliction of emotional distress. See Mace, 188 W. Va. at 67, 422 S.E.2d at 634 (upholding jury's damage award for intentional infliction of emotional
distress and finding punitive damage award unwarranted).
Based on the foregoing, the decision of the Circuit Court of Kanawha County
is affirmed in part and reversed in part and remanded so that the trial court can enter an
order remitting the punitive damages previously awarded in this case.
Affirmed, in part;
reversed, in part;
and remanded
with directions.
Footnote: 1 1 The judgment order was entered on January 2, 1996.Footnote: 2 2 According to the testimony of Darlene Surbaugh, who was a registered nurse in the unit during the relevant time period, the unit had 14 beds and the ages of children on the unit ranged from 9 to 18 years. The nature of the illnesses of the children in this unit ranged from medical/surgical patients to patients with cystic fibrosis, cancer, seizure disorders and drug overdose. The unit also took overflow patients and often these patients were under the age of 9.Footnote: 3 3 The weekend night shift was from 7:00 p.m. Friday night until 7:00 a.m. Saturday morning, from 7:00 p.m. Saturday night until 7:00 a.m. Sunday morning, and from 7:00 p.m. Sunday night until 7:00 a.m. Sunday morning.Footnote: 4 4 According to Appellant Smith, when she became nurse manager, she began cost- cutting measures after careful assessment. One of those measures was to decrease staffing costs. Footnote: 5 5 According to the Appellee's undisputed testimony, it was CAMC's policy that wasting of a narcotic was to occur when a patient needed part of a dosage of a narcotic. Under those circumstances, another registered nurse was required to witness the nurse draw the dosage and dispose of the remaining unused portion of the narcotic. Footnote: 6 6 Appellant Smith further testified that no other nurses ever complained about having only one nurse assigned to the shift. The Appellee, however, produced several nurses who testified that complaints by various nurses had been voiced over this staffing concern. The Appellee further voiced her concerns to several supervisory employees including Johana McKitrick and Darlene Surbaugh, the charge nurses for the unit, Darla Brumfield, a nursing supervisor, and Mike King, CAMC's Vice President of Operations. The concerns raised by the Appellee with Mr. King occurred after the Appellee had left CAMC. Finally, Dr. Kisner testified that the Appellee had verbally told her that she had reported her concerns to Janet Fairchild, the executive secretary for the West Virginia Board of Nurse Examiners. There was, however, no further evidence offered by the Appellee to substantiate this claim. Footnote: 7 7 After the November 1992, the Appellee testified that an LPN was assigned to work the unit "[f]or a while." Footnote: 8 8 Appellant Smith testified that she got upset with the Appellee over the comments, but the reason was the Appellee's suggestion that "that I am putting a patient in safety hazards, because I would never, ever do that."Footnote: 9 9 Ms. McKitrick testified that she had given the Appellee a very favorable evaluation, which was reflected in her narrative comments. In addition to the narrative comments, there are also numerical ratings that actually determine what pay raises, if any, are given. According to Ms. McKitrick, the highest numerical rating for ten different categories was an 8. Despite the favorable narrative commentary, Ms. McKitrick gave the Appellee a numerical rating of only 3.5 in half of the categories, which reflects an average performance. The Appellee testified that Ms. McKitrick told her that after she showed the favorable narrative commentary with favorable ratings to Appellant Smith, Appellant Smith instructed her to lower the ratings that Ms. McKitrick was prepared to give. What favorable numerical ratings Ms. McKitrick would have given was not introduced in evidence at trial. Footnote: 10 10 Ms McKitrick denied that she told the Appellee that Appellant Smith asked that her evaluation be changed. Ms. McKitrick further denied that Appellant Smith had asked her to downgrade the Appellee's evaluation. The only evidence that would support that the evaluation was changed is that Ms. McKitrick's overwhelming favorable narrative
commentary regarding the Appellee simply did not correlate with the numerical ratings on
the same performance categories. Footnote: 11
11
According to Appellant Smith's testimony, in the spring of 1993, the Appellee
approached her and accused her of blocking the Appellee's transfers within CAMC.
Appellant Smith denied that she had ever done this. Appellant Smith also told the Appellee
that she had never been contacted by any manager within CAMC and asked to give a
reference with regard to the Appellee. Appellant Smith then testified that the Appellee
asked her what recommendation she would give if asked. The Appellant told the Appellee
"I would tell them she was a good nurse, but she had an absenteeism problem."Footnote: 12
12
Appellant Smith testified that four other nurses on the unit had requested vacation
time before the Appellee had and that, during prime vacation time, the rule is first come-
first served. Footnote: 13
13
Further, under the attendance policy part-time employees, such as the Appellee,
were to receive an oral warning if they incurred two occasions of absence within six
months. If two additional occasions for absence occurred within six months of the oral
warning, a written warning was given. Two more occasions of absence within six months
of the written warning resulted in a one week suspension without pay. Two more
occasions within six months of the suspension would result in the employee's discharge.Footnote: 14
14
The Appellants produced evidence at trial which indicated that from the day the
Appellee began in the unit until the day she resigned, she was scheduled to work 340 shifts
and failed to appear for 33 of those shifts. This equates to an absenteeism rate of
approximately 10%.Footnote: 15
15
The Appellee had received at least four other verbal warnings for absenteeism
during her tenure at CAMC.Footnote: 16
16
Ms. McKitrick also did not note that absenteeism was a problem on her written
evaluation of the Appellee in the spring of 1993. Footnote: 17
17
CAMC's policy on release of employee information to parties outside the medical
center is as follows:
Strict guidelines are followed before information about
employees is released to parties outside the Medical Center.
The information which may be released is limited to job
performance, dates of employment, verification of salary, and
rehire eligibility which is released only upon written authorization of the employee. Telephone information is limited to verification of dates of employment, job title and salary. Addresses and telephone numbers are not released. Footnote: 18 18 While the Appellee had provided Thomas with written permission to inquire into her employment history with CAMC, CAMC was not in possession of that written authorization at the time Ms. Honaker gave Thomas the Appellee's employment information.Footnote: 19 19 The Appellee testified that she paid $65 to obtain a report.Footnote: 20 20 Ms. de la Torre did not testify at trial. Instead, a reference check report was admitted in evidence under the business records exception. See W. Va. R. Evid. 803(6). The D.R.C. representative, in this case Ms. de la Torre, must be proficient in shorthand as a job requirement and initially records the entire telephone conversation between herself
and the former employer, the Appellants in this case, using shorthand. Ms. de la Torre
then prepares a report which is essentially a transcript of the telephone conversation that
took place between herself and Appellant Smith. The report was admitted in evidence, over
the Appellants' objection, during the testimony of Michael Rankin, the Chief Service
Officer of D.R.C. Footnote: 21
21
Appellant Smith specifically stated that the employee identified themself as being
from Home Health Services, which is apparently a part of SVI. SVI is a related, but
separate corporate entity from CAMC.Footnote: 22
22
The Appellee applied for a job with SVI in November of 1993. Footnote: 23
23
The trial court allowed the videotape deposition in under Rule 404(b) of the West
Virginia Rules of Evidence, on the basis that it was evidence of similar acts by CAMC.Footnote: 24
24
The letter criticized CAMC for cutting nurses' merit pay from 8 percent to 4
percent annually, for decreasing matching funds for nurses retirement accounts, and for
reducing educational assistance and conference moneys for employees.Footnote: 25
25
At the outset, we note that the verdict form used allowed the jury to award both
special (lost wages) and general (emotional distress, mental anguish, damage to
professional reputation) damages as long as the jury found, by a preponderance of the
evidence, that liability existed as to any one of the five cause of actions (retaliatory
discharge, tortious interference, defamation, invasion of privacy and intentional infliction
of emotional distress) alleged by the Appellee. The jury found liability existed as to every
cause of action averred by the Appellee, including intentional infliction of emotional
distress. The Appellants allege no error in submitting that cause of action to the jury and,
in fact, state in their reply brief that "[t]here was no opportunity for the . . . Appellants
to object to the submission of . . . Appellee's emotional distress claim and punitive damage
claim prior to the jury's verdict because . . . [Appellee] was entitled to jury consideration
of both elements of damages."
We previously held with regard to general verdicts that
[w]here a jury returns a general verdict in a case
involving two or more liability issues and its verdict is
supported by the evidence on at least one issue, the verdict will
not be reversed, unless the defendant has requested and been
refused the right to have the jury make special findings as to
his liability on each of the issues.
Syl. Pt. 6, Orr v. Crowder, 173 W. Va. 335, 315 S.E.2d 593 (1983), cert. denied, 469 U.S. 981 (1984). Similarly, in cases such as the instant case, where the jury makes special
findings, we will not reverse the verdict where multiple issues are presented, if the verdict
is supported by the evidence on at least one issue. Consequently, because we uphold the
lower court on both the constructive retaliatory discharge and tortious interference of
employment opportunities issues, we find it unnecessary to address the assignments of
error raised by the Appellants with respect to defamation and invasion of privacy.
Footnote: 26 26 West Virginia Code of State Regulations § 64-12-14.2.4(1987) was amended in 1994. The changes to § 64-12-14.2.4 were minor and have no impact on the outcome of this decision. Footnote: 27 27 The legislature authorized the West Virginia Board of Heath to enact such regulations governing hospitals in West Virginia Code § 16-5B-8 (1995) "to protect patients in institutions . . . from detrimental practices and conditions, or to ensure adequate provision for their accommodations and care." Id.Footnote: 28 28 The Appellee also introduced in evidence the hospital guidelines which indicated that more than one nurse or care giver was required on any give shift. Further, Rachel Byrd, CAMC's Director of Nursing, testified that between 1991 and 1993, the unit was consistently understaffed according to CAMC's own MedicusSee footnote 50 records. According to Ms. Byrd, the practice of assigning only one nurse per shift on the unit also contravened internal policies adopted by CAMC's nursing administrators which required a minimum of two care givers per shift. Finally, Dr. Deborah Kisner, Professor and Director of Nursing Education at Fairmont State College, testified that CAMC's practice of routinely assigning only one nurse to the unit was unsafe.Footnote: 29 29 The Appellants also rely upon this Court's decision in Bowe v. Charleston Area Medical Center, Inc.. 189 W.Va. 145, 428 S.E.2d 773 (1993), to support their contention that the regulations relied upon by the Appellee did not constitute a substantial public policy. "Per curiam opinions [,however,] . . . are used to decide only the specific case before the Court; everything in a per curiam opinion beyond the syllabus point is merely obiter dicta." Lieving v. Hadley, 188 W. Va. 197, 201, 423 S.E.2d 600, 604 n.4 (1992).Footnote: 30 30 Whether the staffing practice at issue created a substantial danger to the safety of the public is a factual determination. Similarly, whether the employee was discharged for
bringing attention to the staffing practice is also a factual determination in each case. See
Lilly, 188 W. Va. at 541-42, 425 S.E.2d at 217-18 and n.6.Footnote: 31
31
As previously mentioned, Appellant Smith testified that the rule regarding vacation
time under the circumstances alleged was first come-first served, and four other nurses had
already requested vacation time, prior to the Appellee's request being made. See infra
note 12. Footnote: 32
32
While the Appellee claimed that Appellant Smith blocked her requested transfers,
Appellant Smith testified that she had not blocked any of the Appellee's requested transfers
and further, she had never been contacted by another manager within CAMC about the
Appellee. Footnote: 33
33
We note that this Court makes no findings on these issues. The Appellee's
evidence supporting her case was contested by the Appellants at every turn. The only
question before us is whether sufficient evidence was presented to support the Appellee's
claim and to make the matter a jury question. Footnote: 34
34
The Appellee asserts in a footnote that "the . . . [Appellants] were also
procedurally barred from asserting this defense at trial since it was never properly pled as
an affirmative defense as required by W. V. R. C. P. Rule 8(c)." The Appellants
responded to this assertion raised by the Appellee in her response to the Appellants' motion
before the lower court. The Appellants maintained that they could not have raised the
release as an affirmative defense at the time their answer to the complaint was filed
because they did not know that such release existed until it was produced during discovery.
While the pleading of release is an affirmative defense that should be raised in an answer
to a complaint, "West Virginia Rule of Civil Procedure 15(b) provides that when issues
not raised by the pleadings 'are tried by express or implied consent of the parties, they
shall be treated in all respects as if they had been raised in the pleadings.'" State, Dep't
of Health and Human Resources, Child Advocate Office ex rel. Robert Michael B. v.
Robert Morris N., 195 W. Va. 759, 764, 466 S.E.2d 827, 832 (1995). It is clear, upon
review of the record, that the issue was clearly tried by the "express or implied consent"
of the parties, insomuch as the Appellee never raised any objection or made any argument
with respect to this issue at trial. Id.Footnote: 35
35
Some jurisdictions have determined that a party's attempt to absolve itself from
liability for an intentional tort is against public policy. See Reece v. Finch, 562 So. 2d 195, 200 (Ala. 1990); Kellums v. Freight Sales Centers, Inc., 467 So. 2d 816, 817 (Fla.
Dist. Ct. App. 1985). Other jurisdictions have simply held such exculpatory clauses
invalid if they purport to exonerate a party from willful, wanton or reckless conduct or
from an intentional tort. See Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981);
Winterstein v. Wilcom, 293 A.2d 821, 824-25 (Md. Ct. App. 1972).Footnote: 36
36
Whether the information released by CAMC and Appellant Smith concerning
Appellee's absenteeism problem that resulted in her "no rehire" status was false is not for
this Court to determine as it was a question of fact for the jury to decide. See Crump v.
Beckley Newspapers, Inc. 173 W. Va. 699, 710, 320 S.E.2d 70, 81 (1983) (stating that
"th[e] controversy as to the underlying truth or falsity of the statements" is a question of
fact for the jury).Footnote: 37
37
Again, whether such a bad motive or malice existed in this case was properly left
for the jury to determine. See Syl. Pt. 3, Stewart v. Riley, 114 W. Va. 578, 172 S.E. 791
(1934) ("Given a privileged occasion and words within the scope of the privilege as
established facts, the question of whether the utterance was malicious is for the jury."). Footnote: 38
38
West Virginia Rule of Evidence 803(6) provides:
Records of regularly conducted activity. -- A
memorandum, report, record, or data compilation, in any
form, of acts, events, conditions, opinions, or diagnoses, made
at or near the time by, or from information transmitted by, a
person with knowledge, if kept in the course of a regularly
conducted business activity, and if it was the regular practice
of that business activity to make the memorandum, report,
record, or data compilation, all as shown by the testimony of
the custodian or other qualified witness, unless the source of
information or the method or circumstances of preparation
indicate lack of trustworthiness. The term "business" as used
in this paragraph includes business, institution, association,
profession, occupation, and calling of every kind, whether or
not conducted for profit.
Id.Footnote: 39
39
We find that the Appellants' contention that the de la Torre memorandum lacks
a sufficient indicia of trustworthiness to be considered a business record is without merit.
Further, the Appellants' reliance upon Palmer v. Hoffman, 318 U.S. 109, reh'g denied,
318 U.S. 800 (1943), to support their contention is factually distinguishable from the
instant case. In Palmer, an accident report prepared by a railroad engineer in connection
with a crossing accident was found inadmissible as a business record. The Supreme Court,
in upholding the inadmissibility of the report, stated:
In short, it is manifest that in this case those reports are
not for the systematic conduct of the enterprise as a railroad
business. Unlike payrolls, accounts receivable, accounts
payable, bills of lading and the like, these reports are
calculated for use essentially in the court, not in the business.
Their primary utility is in litigating, not in railroading.
Id. at 114; see In re Estate of Solomon ex rel. Solomon v. Shuell, 457 N.W.2d 669, 677
(Mich. 1990) ("Palmer has subsequently been read to stand for the proposition that the trial
court, in its discretion, may exclude evidence meeting the literal requirements of the
business records exception where the underlying circumstances indicate a lack of the
trustworthiness business records are presumed to have"). In the instant case, the trial court
did not abuse its discretion in determining that the record had the necessary requisite of
trustworthiness to compel its admission in evidence.Footnote: 40
40
West Virginia Rule of Evidence 404(b) provides:
(b) Other crimes, wrongs, or acts. -- Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident, provided that upon
request by the accused, the prosecution in a criminal case shall
provide reasonable notice in advance of trial, or during trial if
the court excuses pretrial notice on good cause shown, of the
general nature of any such evidence it intends to introduce at
trial.
Id.Footnote: 41
41
The Appellants assert that the testimony was improperly admitted as a similar act
because Ms. Tiernan never worked in the Adolescent Unit, never worked with the
Appellee, and was never under the supervision of Appellant Smith. Further, according to
the Appellants, Ms. Tiernan was fired by CAMC for allegedly bringing a reporter to a
meeting where the speaker did not know that the reporter was present, which is completely
inapposite to the issues in the instant case. Footnote: 42
42
We have recognized the application of McGinnis for purposes of determining the
admissibility of Rule 404(b) evidence in the civil context in Stafford v. Rocky Hollow Coal
Co., 198 W. Va. 593, 482 S.E.2d 210 (1996) (involving former employee's wrongful
discharge action against former employer, its president and parent corporations).Footnote: 43
43
The trial court offered a limiting instruction to the jury prior to the playing of the
videotaped deposition.Footnote: 44
44
While the Appellants also couch this assignment of error in terms of the trial court
erring in submitting the issue of punitive damages to the jury, the Appellants never
objected to this at trial. Indeed, the Appellants offered their own jury instruction on the
issue, as well as agreed to the issue being placed on the verdict form. Thus, we will only
address the remittitur issue as it relates to whether the damages for intentional infliction
of emotional distress and punitive damages awarded by the jury are duplicative under this
Court's decision in Dzlinglski. See 191 W. Va. at 281, 445 S.E.2d at 222, Syl. Pt. 8. Footnote: 45
45
See 191 W. Va. 278, 445 S.E.2d 219.Footnote: 46
46
In reviewing this issue in other jurisdictions, there is no clear majority view. The
following jurisdictions have held that recovery for both punitive and emotional distress is
double recovery. See Southern Gen. Ins. Co. v. Holt, 409 S.E.2d 852, 860 (Ga. Ct. App.
1991), aff'd in part, rev'd in part, 416 S.E.2d 274 (Ga. 1992)(stating that damages for
intentional infliction of emotional distress and punitive damages "constituted impermissible
double recovery" where suit brought against insurer for bad-faith refusal to settle
underlying action); Kewin v. Massachusetts Mut. Life Insur. Co., 263 N.W.2d 258, 266
(Mich. Ct. App. 1978) aff'd in part, rev'd in part, 295 N.W.2d 50 (1980)(stating that "we
held that exemplary damages could not be recovered in this type of case because it was
possible to recover damages for mental anguish and exemplary damages were intended to
compensate for the same injuries" where mental anguish arose from insurer's alleged bad
faith refusal to honor valid claim); Knierim v. Izzo, 174 N.E.2d 157, 165 (Ill. 1961)
(concluding where widow's severe emotional distress arose from defendant's threat to
murder widow's husband and fulfillment of threat that "punitive damages cannot be
sanctioned as an additional recovery in . . . [an intentional infliction of emotional distress]
action. Since the outrageous quality of the defendant's conduct forms the basis of the
action, the rendition of compensatory damages will be sufficiently punitive.").
Interestingly, even though the above-referenced jurisdictions have not specifically held that punitive damages constitute a double recovery only when there are damages for intentional infliction of emotional distress with no concomitant physical injury, in each of the above-cited cases, the facts of those cases are consistent with this
distinction.
In contrast, other jurisdictions have found that punitive damages awarded in
addition to damages for intentional infliction of emotional distress do not constitute a
double recovery. See Heller v. Pillsbury Madison & Sutro, 58 Cal. Rptr. 2d 336, 350
(Cal. Dist. Ct. App. 1996) ("punitive damages are recoverable for intentional infliction of
emotional distress"); Hall v. May Dep't Stores Co., 637 P.2d 126, 134-37 (Or. 1981),
abrogated on other grounds by McGanty v. Staudenraus, 901 P.2d 841 (Or. 1995) (stating
that punitive damages are recoverable in principle under theory of intentional infliction of
emotional distress); Gianoli v. Pfleiderer, 563 N.W.2d 562, 569 (Wis.Ct.App.), rev.
denied, 568 N.W.2d 298 (Wis. 1997) (upholding lower court's award of punitive damages
based upon action for intentional infliction of emotional distress); Hall v. Montgomery
Ward & Co., 252 N.W.2d 421, 425 (Iowa 1977) (finding that employee was entitled to
collect punitive damages as well as compensatory damages for intentional infliction of
emotional distress).
Footnote: 47
47
We recently held in syllabus point five of Stump v. Ashland, Inc., Nos. 23818,
23819, 23820, 23821, 23822, 23823, 23824, 23825, 23826, 23827 and 23828, ___ W.
Va. ___, ___ S.E.2d ___ (W. Va. filed Nov. 24, 1997), that "[u]pon appropriate proof,
both compensatory and punitive damages may be awarded to a plaintiff in an action for negligent infliction of emotional distress." We also stated in Stump, however, that in a negligent infliction of emotional distress case, "the focus is on the seriousness of the emotional distress suffered by the plaintiff. The seriousness of this distress must be proved through the use of medical and psychiatric evidence." Slip op. at 26 (emphasis added); accord Heldreth v. Marrs, 188 W. Va. 481, 491, 425 S.E.2d 157, 167 (1992).Footnote: 48 48 In Dzlingski, the plaintiff's claim for intentional infliction of emotional distress without physical trauma arose out of the plaintiff's employer's investigation of the plaintiff for alleged improprieties. See 191 W. Va. at 281-83, 445 S.E.2d at 222-24. Those improprieties included approving payment for salaried supervisory employees who performed no actual work and accepting kickbacks. Id. The jury awarded the plaintiff $500,000 in compensatory damages, as well as punitive damages. Id. at 283, 445 S.E.2d at 224. The circuit court set aside the punitive damages award. Id. Footnote: 49 49 We do not by our opinion seek to blur the distinction between actual damages for emotional injury, damage to reputation and mental anguish (which are given as the result of and in an amount determined by the degree of a party's injury) and punitive damages, which are imposed in addition to such actual damages. In the instant case, however, we believe the jury clearly blurred this line, and the jury clearly incorporated punitive damages into its calculation of actual damages. Footnote: 50 5 Medicus was a patient classification system. The system was used to determine the number of nurses and other caregivers to be assigned daily on each hospital unit.
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