NORTHEAST HEALTH MANAGEMENT, INC. AND MCLEAN COUNTY GENERAL HOSPITAL, INC. v. KIMBERLY JAN COTTON AND PAMELA HOWELL
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RENDERED:
September 7, 2001; 2:00 p.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000332-MR
NORTHEAST HEALTH MANAGEMENT, INC.
AND MCLEAN COUNTY GENERAL HOSPITAL, INC.
APPELLANTS
APPEAL FROM MCLEAN CIRCUIT COURT
HONORABLE DAVID H. JERNIGAN, JUDGE
ACTION NO. 97-CI-00045
v.
KIMBERLY JAN COTTON AND
PAMELA HOWELL
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON, KNOPF AND MILLER, JUDGES.
JOHNSON, JUDGE:
Northeast Health Management, Inc., and McLean
County General Hospital, Inc., have appealed from a judgment
entered on December 2, 1999, by the McLean Circuit Court which
followed a jury verdict which awarded Kimberly Cotton and Pamela
Howell compensatory and punitive damages for wrongful termination
and constructive discharge.1
1
The hospital raises several
The appellants will be referred to jointly as “the
hospital”.
arguments on appeal: (1) the evidence was insufficient to support
a finding that the conditions created by the hospital, through
administrator Mynette Dennis, created intolerable employment
conditions; (2) the jury’s verdict that the hospital wrongfully
discharged Cotton and Howell as a result of Dennis’ request that
they commit perjury was not supported by the evidence and was
clearly erroneous; (3) the jury’s finding that Howell was
discharged as a result of her refusal to alter business records
was clearly erroneous and based solely upon supposition and
speculation because Howell failed to produce any evidence to
support that such a request was in violation of a legislative
enactment; (4) punitive damages were not warranted because the
hospital did not act with malice or gross negligence towards
Cotton and Howell; (5) the trial court failed to properly
instruct the jury with regard to punitive damages; (6) the
introduction of testimony of Kathleen Haley for the purpose of
impeaching Dennis was improper; and (7) the trial court abused
its discretion by allowing improper character evidence to be
heard.
Having concluded that no reversible error occurred, we
affirm.
From November 1988, until November 1996, Northeast
Health Management, Inc. and McLean County General Hospital, Inc.,
operated the McLean County General Hospital.
Cotton and Howell
were employees at this hospital which had a small staff.
Cotton
was employed as the activities director and handled general
office duties.
Howell was employed as the business office clerk.
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Dennis was employed as the hospital administrator
between 1988 and 1996 and she was primarily responsible for the
day-to-day operations of the hospital and had significant input
on all decisions relating to hospital personnel.
She had the
ability to both hire and fire employees and could change
employees’ job duties and assignments.
Prior to March 1995,
Cotton and Howell had a very good working relationship with
Dennis.
However, in March 1995, Dennis was charged with
shoplifting a bottle of suntan lotion from a local tanning salon.
In April 1995, Dennis and her daughter, along with some
of her daughter’s friends, decided to take a vacation in the
Bahamas.
trip.
Dennis invited both Cotton and Howell to go on the
According to Dennis, the vacation package would cost less
per person if additional people went.
Howell went on the trip,
but Cotton did not go because she had previously made plans for
another vacation at the same time.
Shortly after returning from the Bahamas, Dennis called
Cotton and Howell into her office for two meetings during which
she discussed the events that led to her shoplifting charge.2
Cotton and Howell claim that Dennis told them to be seated and
she provided them pen and paper and asked them to take notes.
The notes, which were introduced at trial, included additions in
Dennis’ handwriting which she acknowledged.
2
Cotton and Howell
During the trial, Dennis could only remember one meeting,
but she did not dispute that she met with Cotton and Howell to
discuss her situation. Dennis claimed she never asked them to
perjure themselves.
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claim that Dennis wanted them to testify that they overheard a
conversation over the speaker phone between Dennis and an
employee at the tanning salon.
At the second meeting, both
Cotton and Howell told Dennis that they could not testify
falsely, and they claim Dennis responded harshly, “Fine!”
It is from this point that Cotton and Howell allege
that their working relationship with Dennis turned cold and
bitter.
Cotton claimed at trial that when she refused to perjure
herself she felt as if her days were numbered at the hospital.
Howell testified that, “[Dennis] didn’t immediately banish us to
different rooms or she didn’t start up with everything, but it
was a slow and escalating thing, but it started at that point in
time.”
In October 1995, Dennis went to trial on the shoplifting
charge and was convicted by a McLean County jury.
Cotton and Howell claim that after the trial the
atmosphere at the hospital was significantly different.
They
claim that communication between Dennis and themselves became
strained and that Dennis would give them nasty glares and talk
badly about them behind their backs.
Other employees agreed that
the working environment changed after the shoplifting conviction.
Joann Ashby testified that after Dennis’ conviction, the
relationship between Dennis and Cotton and Howell changed.
testified, “[y]ou could see it changing a lot.
wasn’t as close or anything.
self more and everything.
trouble going on.”
She
They were-- it
You could-- they were off to their
You could tell that.
There was
Another former employee, Linda Frey,
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testified, “then all of a sudden, it was like an icy isolation.
A coldness.”
Finally, according to Cotton and Howell, Dennis
completely cut off verbal communication with them and simply left
notes on their desks.
Along with the general change in the work environment,
Cotton and Howell claim that Dennis took more overt actions
against them following her shoplifting conviction.
Howell
testified that she received permission to go to a funeral for a
family member and that upon returning she learned that Dennis had
been making negative comments about the fact that she had taken
the time off from work.
Also, both Cotton and Howell claim that
for Christmas or year-end bonuses, they normally received gift
certificates valued at between $45-$60.
After the shoplifting
incident, they only received a gift certificate valued at $15,
the same every other employee received.
In early 1996, Cotton began to receive bills for lab
and x-ray services provided to her at the hospital.
Cotton
testified that prior to the shoplifting incident she had received
similar services as a benefit of her employment at the hospital.
In May 1996, an individual and some of his companions
pulled into the parking lot of McLean County General Hospital.
This individual never entered the hospital, but instead went to a
hospital in Owensboro for treatment and subsequently died.
As a
result of this incident, McLean County General Hospital was
investigated by the Commonwealth of Kentucky for improper patient
transfer procedures.
According to Howell, Dennis approached her
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during the investigation and asked her to prepare and backdate a
document which would show that the nurses had the proper training
and the proper policies were in place to deal with transferring
emergency patients.
Howell testified that she refused to type
the fraudulent document.
After this document incident, Cotton and Howell claim
Dennis’ treatment of both of them became even worse.
They claim
Dennis constantly watched over them and would make disparaging
comments about them.
They also claim Dennis required them to
meet strict break and lunch times and they were not permitted to
communicate with each other.
They claim that no other employees
were assigned strict break and lunch times and that previously
their breaks had always been flexible and were usually taken with
Dennis.
Both Cotton and Howell were asked to return their office
keys and they were not allowed to attend medical staff meetings.
Furthermore, Cotton testified that after July 1996 she was not
permitted to use the telephone even though many of her job duties
required using the telephone.
Dennis testified that she
requested that Cotton limit her phone usage when making personal
calls.
Also, Cotton was moved to a desk which was down a hallway
and facing a wall.
Cotton and Howell testified that these events caused
significant stress in both their personal and professional lives
resulting in stress-related vomiting and diarrhea.
In early
October 1996, both Cotton and Howell tendered resignation letters
to Dennis.
Copies of the letters were also sent to Harold McBee,
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President and CEO of Northeast.
The only response ever received
to these letters was a letter from Dennis to Cotton, stating:
I received your letter of resignation from
this facility on Oct. 8, 1996. Thank you so
much, I appreciate it, and your resignation
is accepted and effective as of Oct. 8, 1996.
Your final check will be placed in the mail
on Friday, Oct. 18, 1996.
Thank you again,
Mynette Dennis
On April 1, 1997, Cotton and Howell filed a lawsuit
against Northeast alleging wrongful discharge and seeking
compensatory and punitive damages.
In an amended complaint filed
on September 17, 1997, Cotton and Howell added McLean County
General Hospital and Dennis as defendants.
Cotton and Howell
realleged their previous claims and also alleged the intentional
infliction of emotional distress.
jury in November 1999.
The case was tried before a
The trial court entered a directed
verdict in favor of Northeast, McLean County General Hospital and
Dennis on Cotton’s and Howell’s claims of intentional infliction
of emotional distress.
The other claims against Northeast and
McLean County General Hospital were submitted to the jury.
The jury found in favor of Cotton and Howell and
awarded Cotton $6,171.00 for lost wages and Howell $5,060.00 for
lost wages.
Cotton and Howell were each awarded $15,000.00 for
mental anguish and $75,000.00 each in punitive damages.
The
trial court denied the hospital’s motion to set aside the verdict
or to grant a new trial.
This appeal followed.
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The hospital’s first claim of error is that the
evidence at trial did not support a finding that it created
intolerable working conditions.
During trial, Cotton and Howell
argued that they were constructively discharged by the actions of
Dennis.
The commonly accepted standard for constructive
discharge is “whether, based upon objective criteria, the
conditions created by the employer’s action are so intolerable
that a reasonable person would feel compelled to resign.”3
This
Court cannot substitute its judgment for that of the jury.4
In
Bierman v. Klapheke,5 our Supreme Court stated:
All evidence which favors the prevailing
party must be taken as true and the reviewing
court is not at liberty to determine
credibility or the weight which should be
given to the evidence, these being functions
reserved to the trier of fact. The
prevailing party is entitled to all
reasonable inferences which may be drawn from
the evidence.
. . .
The reviewing court, upon completion of a
consideration of the evidence, must determine
whether the jury verdict was flagrantly
against the evidence so as to indicate that
it was reached as a result of passion or
prejudice. If it was not, the jury verdict
should be upheld [citation omitted].
3
Commonwealth, Tourism Cabinet v. Stosberg, Ky.App., 948
S.W.2d 425, 427 (1997)(citing Darnell v. Campbell County Fiscal
Court, 731 F.Supp. 1309 (E.D.Ky. 1990); and Humana, Inc. v.
Fairchild, Ky.App., 603 S.W.2d 918 (1980)).
4
Humana, supra at 922.
5
Ky., 967 S.W.2d 16, 18-19 (1998).
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In its brief, the hospital argues that the
“intolerable” conditions claimed by Cotton and Howell were as
follows:
(1)
Ms. Dennis was not overly
communicative with the appellees.
The appellees did not say that Ms.
Dennis treated them harshly, only
that she was not as communicative.
(2)
Ms. Howell’s work hours were
changed.
(3)
Ms. Howell’s and Ms. Cotton’s lunch
times were set at a specified time.
(4)
Their break times were set at a
specific time.
(5)
They were told not to return to the
premises after work hours.
(6)
They did not feel they could
adequately communicate with Ms.
Dennis or other Hospital personnel.
(7)
They felt as if they were being
closely watched by Ms. Dennis.
This is the same type of argument the hospital
presented to the jury; and clearly, the jury did not accept its
argument of the evidence.
Cotton and Howell claim the
intolerable work conditions created by Dennis followed their
refusal to perjure themselves in her criminal trial.
While the
conditions alleged may not have been the most egregious
imaginable, they surely rise to the level that the jury had
sufficient evidence to find a constructive discharge.
It should
be noted that Cotton and Howell did not claim that they were
simply assigned lunch and break times, but that the assignments
were given to them and not to other employees in an attempt to
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ostracize them from the rest of the employees and each other.
Furthermore, they claimed Dennis cut off communication with them
in retaliation for their refusal to perjure themselves.
They
contend that Dennis’ actions created a tense atmosphere at the
hospital and that the working conditions at this small hospital
eventually became unbearable for both of them.
Moreover, many of
these allegations were supported by the testimony of other
hospital employees.
Dennis failed to present any witnesses,
other than herself, to contradict Cotton’s and Howell’s
allegations.
Accordingly, we hold that the evidence was
sufficient to support the jury’s finding that Dennis’ actions
constituted a constructive discharge of Cotton and Howell.
The hospital’s second claim of error is that Cotton’s
and Howell’s alleged discharge did not fall within one of the
recognized exceptions to the terminable-at-will doctrine.
The
general rule is that an employer may discharge an “at-will
employee for good cause, for no cause, or for a cause that some
might view as morally indefensible.”6
In Grzyb v. Evans,7 our
Supreme Court stated:
We adopt, as an appropriate caveat to
our decision in Firestone Textile Co. Div. v.
Meadows, supra, the position of the Michigan
Supreme Court in Suchodolski v. Michigan
Consolidated Gas Co., 412 Mich. 692, 316
N.W.2d 710 (1982). The Michigan court held
6
Firestone Textile Co. Div., Firestone Tire & Rubber Co. v.
Meadows, Ky., 666 S.W.2d 730, 731 (1983)(citing Production Oil
Co. v. Johnson, Ky., 313 S.W.2d 411 (1958); and Scroghan v.
Kraftco Corp., Ky.App., 551 S.W.2d 811 (1977)).
7
Ky., 700 S.W.2d 399, 402 (1985).
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that only two situations exist where “grounds
for discharging an employee are so contrary
to public policy as to be actionable” absent
“explicit legislative statements prohibiting
the discharge.” 316 N.W.2d at 711. First,
“where the alleged reason for the discharge
of the employee was the failure or refusal to
violate a law in the course of employment.”
Second, “when the reason for a discharge was
the employee’s exercise of a right conferred
by well-established legislative enactment.”
316 N.W.2d at 711-12. Here the concept of an
employment-related nexus is critical to the
creation of a “clearly defined” and “suitably
controlled” cause of action for wrongful
discharge. These are the limitations imposed
by Firestone Textile Co. Div. v. Meadows,
supra at 733.
The hospital seems to argue that because Cotton and
Howell worked for more than a year after Dennis requested them to
perjure themselves that their claims of retaliation are unlikely
and unbelievable.
Unfortunately for the hospital, the jury sided
with Cotton and Howell and the hospital has not cited any support
for its contention that this lapse in time has any legal
significance.
We believe Cotton and Howell sufficiently met the
first prong of the two-part test in Grzyb that is required to
qualify as an exception to the terminable-at-will doctrine.
Specifically, in the course of their employment, Dennis asked
Cotton and Howell to violate a law by requesting that they
perjure themselves.
Next, the hospital argues that even assuming that
Dennis asked Cotton and Howell to perjure themselves, this act
lacks the necessary employment-related nexus to their employment
as required by Firestone and Grzyb, supra.
We find no merit in
the hospital’s argument that Dennis’ request to have Cotton and
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Howell perjure themselves lacks the necessary employment-related
nexus.
Dennis called Cotton and Howell into her office for two
meetings while they where at work to discuss their possible
testimony at her shoplifting trial.
Later, when both employees
refused to perjure themselves, Dennis made their working
environment difficult and uncomfortable to the point that they
were forced to resign.
We believe that it is insignificant that
Dennis asked Cotton and Howell to violate a law in a matter that
was personal to Dennis.
The request and retaliation by Dennis
was nonetheless an abuse of her authority as Cotton’s and
Howell’s supervisor.
Next, the hospital argues that the jury’s finding that
Howell was constructively discharged based in part due to her
refusal to backdate a business record at the request of Dennis
was clearly erroneous because Howell failed to produce any
evidence that such a request was in violation of a legislative
enactment.
At trial it was argued that if Howell were to
backdate this particular document she would have violated KRS8
517.050, which states:
(1)
A person is guilty of falsifying
business records when, with intent to
defraud, he:
(a)
(b)
8
Makes or causes a false entry to
be made in the business records
of an enterprise; or
Alters, erases, obliterates,
deletes, removes or destroys a
Kentucky Revised Statutes.
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true entry in the business
records of an enterprise; or
(c)
Omits to make a true entry in the
business records of an enterprise
in violation of a duty to do so
which he knows to be imposed upon
him by law or by the nature of
his position; or
(d)
Prevents the making of a true
entry or causes the omission
thereof in the business records
of an enterprise.
The trial court ruled that based on Howell’s testimony a jury
could reasonably find that she was asked to unlawfully alter a
business record.
Howell testified at trial that she typed most of the
policies and procedures that were in place at the hospital that
were required by the Commonwealth in order for the hospital to
maintain its license and to be paid through Medicare and
Medicaid.
Howell testified that Dennis approached her after the
1996 improper transfer incident and asked her to backdate a
business record.
Specifically, Howell testified that Dennis told
her the hospital did not have documentation to show that the
nurses had the proper training in transporting patients or
concerning the procedures to follow to stabilize a patient before
he was transferred.
Howell further testified that according to
Dennis the Commonwealth required a document that was not in the
hospital’s existing record of policies and procedures.
Howell
testified that Dennis asked her to type the document and to date
it prior to the incident, which she refused to do.
We believe
Howell’s testimony constituted sufficient evidence to support the
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jury’s finding that Dennis requested her to falsify a business
record in violation of KRS 517.050.
The hospital also claims that punitive damages were not
warranted because the hospital did not act with malice or gross
negligence towards Cotton and Howell; and even assuming it did,
punitive damages were not warranted pursuant to KRS 411.184(3).
In a related argument, it argues that the trial court improperly
instructed the jury on punitive damages.
For its argument, the hospital quotes from Horton v.
Union Light, Heat & Power Co.,9
In order to justify punitive damages there
must be first a finding of failure to
exercise reasonable care, and then an
additional finding that this negligence was
accompanied by “wanton or reckless disregard
for the lives, safety or property of others.”
This bears an element not distinguishable
from malice implied from the facts.
Horton did not involve a claim of wrongful discharge, and thus is
distinguishable from the case sub judice.
This Court in Simpson County Steeplechase Ass’n, Inc. v.
Roberts,10 addressed the availability of punitive damages in a
wrongful discharge case.
The Court noted that “[u]nder KRS
411.184(1)(f), “‘[p]unitive damages’ includes exemplary damages
and means damages, other than compensatory and nominal damages,
awarded against a person to punish and to discourage him and
9
Ky., 690 S.W.2d 382, 389-90 (1985).
10
Ky.App., 898 S.W.2d 523, 525 (1995)(citing Hensley v. Paul
Miller Ford, Inc., Ky., 508 S.W.2d 759 (1974); and Harrod v.
Fraley, Ky., 289 S.W.2d 203, 205 (1956)).
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others from similar conduct in the future.”
Further, KRS
411.184(2) states, “[a] plaintiff shall recover punitive damages
only upon proving, by clear and convincing evidence, that the
defendant from whom such damages are sought acted toward the
plaintiff with oppression, fraud or malice.”
This Court in
Roberts, supra, stated, “[t]he key element in deciding whether
punitives are appropriate is malice or conscious wrongdoing.
Malice may be implied from outrageous conduct and need not be
express so long as the conduct is sufficient to evidence
conscious wrongdoing.”11
This Court in Roberts, recognized that
punitive damages can be recovered in a wrongful discharge case:
Generally, punitive damages have been
allowed in actions for wrongful discharge of
an at-will employee where the action has been
based upon the claim that the discharge was
in violation of public policy. Courts have
reasoned that such a violation sounds in tort
and that all damages including punitives are
available. Punitive damages are thus used as
a deterrent [citations omitted].12
The hospital argues that under KRS 411.184(3) it should
not be liable for Dennis’ actions.
KRS 411.184(3) provides,
“[i]n no case shall punitive damages be assessed against a
principal or employer for the act of an agent or employee unless
such principal or employer authorized or ratified or should have
anticipated the conduct in question.”
This Court addressed the
application of KRS 411.184(3) in Roberts, supra, where the
employer’s agent discharged ten employees for union activity:
11
Id.
12
Id. at 526.
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In the instant case, Shannon, the owner and
sole shareholder of Simpson County
Steeplechase, stated that Pessin had sole,
unfettered discretion and authority to
operate Dueling Grounds and to hire and fire
employees. Shannon would occasionally
consult with Pessin, but basically gave
Pessin a blank check to do as he wished.
Thus, this is not merely an agent/employee
case. Further, the jury heard all of the
evidence and was also free to believe or
disbelieve the statements by Shannon and
whether he had knowledge of the events
surrounding the appellees.13
In the case sub judice, it is undisputed that Dennis
had the sole discretion to hire and fire employees.
Moreover,
the record reflects that the hospital provided very little direct
supervision over Dennis’ supervisory conduct.
Accordingly, we
believe consistent with Roberts that Cotton and Howell presented
sufficient evidence to warrant an award of punitive damages
against the hospital.
In order to address the hospital’s claim that the trial
court’s instructions on punitive damages were insufficient, we
quote from the trial court’s jury instructions as follows:
If you find for the Plaintiffs, or
either one of them, in this action and if you
are further satisfied from the evidence that
Defendants Northeast Health Management, Inc.
and Mclean County General Hospital, Inc.
acted toward the Plaintiffs with oppression,
fraud, malice, or gross negligence, you may
in your discretion award punitive damages
against Defendants Northeast Health
Management, Inc. and McLean County General
Hospital, Inc. in addition to the damages
awarded.
As used in this instruction:
13
Id. at 527.
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“Oppression” means conduct that was
specifically intended by Defendants Northeast
Health Management, Inc., and McLean County
General Hospital, Inc. to subject Plaintiff
to cruel and unjust hardship; and
“Malice” means (a) conduct that was
specifically intended by Defendants Northeast
Health Management, Inc. and McLean County
General Hospital, Inc. to cause tangible or
intangible injury to Plaintiff, OR (b)
conduct that was carried out by Defendant
with both a flagrant indifference to
Plaintiff’s rights AND a subjective awareness
that such conduct would result in human death
or bodily harm; and
“Fraud” means an intentional
misrepresentation, deceit, or concealment or
material fact known to the Defendants
Northeast Health Management, Inc. and McLean
County General Hospital, Inc. and made with
the intention of causing injury on the
plaintiff.
“Gross negligence” means reckless
disregard for the rights of others, including
the rights of Plaintiffs.
If you award punitive damages, in
determining the amount therefore you should
consider the following factors:
(a) the likelihood at the time of such
misconduct by Defendants Northeast
North [sic] Management, Inc. and
McLean County General Hospital, Inc.
that serious harm would arise from
it;
(b) the degree of Defendants Northeast
Health Management and McLean County
General Hospital, Inc. awareness of
that likelihood;
(c) the profitability of the misconduct
to Defendants Northeast Health
Management, Inc. and McLean County
General Hospital, Inc.
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(d) the duration of the misconduct by
Defendants Northeast Health
Management, Inc. and McLean County
General Hospital, Inc. and
(e) any actions taken by the Defendants
Northeast Health Management, Inc.,
and McLean County General Hospital,
Inc. to remedy the misconduct once
it became known to the Defendants
Northeast Health Management, Inc.
and McLean County General Hospital,
Inc.
KRS 411.186(2) sets forth the factors to be considered
when determining the amount of punitive damages to be awarded:
If the trier of fact determines that punitive
damages should be awarded, the trier of fact
shall then assess the sum of punitive
damages. In determining the amount of
punitive damages to be assessed, the trier of
fact should consider the following factors:
(a) The likelihood at the relevant time that
serious harm would arise from the defendant’s
misconduct;
(b) The degree of the defendant’s awareness
of that likelihood;
(c) The profitability of the misconduct to
the defendant;
(d) The duration of the misconduct and any
concealment of it by the defendant; and
(e) Any actions by the defendant to remedy
the misconduct once it became known to the
defendant.
We believe the above instructions sufficiently addressed the
general nature of KRS 411.186(2).
The hospital has not cited us
to any case nor have we found one which states that the language
of this statute must be precisely followed.
Thus, we find no
error in the trial court’s punitive damages jury instruction.
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The hospital further contends that “[t]he evidence did
not sufficiently support an award of mental anguish” for Cotton
and Howell.
The hospital argues that Cotton and Howell
“testified considerably with regard to the mental anguish they
endured during their employment with the [h]ospital” [emphasis
original].
The hospital claims that since “[t]here was no
testimony . . . with regard to any emotional distress occurring
after they resigned from their employment” their damage claims
for mental anguish are barred by the exclusive remedy provision
of KRS 342.690.
We believe the hospital has effectively waived
any defense that this case was governed by the Workers’
Compensation Act.
The hospital did not raise this defense until
its motion for a directed verdict at the end of the trial.
The
trial court denied the motion at that time ruling that Cotton and
Howell had sufficiently proved that they suffered mental anguish
after their employment ended with the hospital.
The exclusive
remedy provision of KRS 342.690 is an affirmative defense which
must be pled and proven and the failure to do so constitutes a
waiver of the defense.14
The hospital’s next claim of error is that the
introduction of testimony from Kathleen Haley for the purpose of
impeaching Dennis was improper.
During cross-examination, Dennis
was asked about Howell’s allegation that Dennis requested her to
backdate a document.
The following colloquy occurred:
14
Gordon v. NKC Hospitals, Inc., Ky., 887 S.W.2d 360, 362-63
(1994); Kentucky Rules of Civil Procedure 8.03.
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Q: But there didn’t come a time in July of
1996, when the State said we’d like to look
at this policy now and you, in fact, went to
Pam and said type it up, we’ll tell them it
was here all along?
A: I don’t recall that.
Sure don’t.
Q: You don’t recall that? You, in fact, deny
it after we’ve been through this?
A: I--I--alright. What I’m--what I’m saying
here is everything we had in place we had to
have in place every year. It was not--there
was not things in July of ‘96 particularly
that we needed that I know of. They could
have requested something.
During her direct testimony Haley testified as follows:
Q: While you were there, was the
investigation [Cobra violation for improper
transfer] going on?
A: Yes.
It was.
Q: Was there anything that went on during
that investigation that made you
uncomfortable?
A: Yes.
There was.
Q: Please tell me what that is.
A: The State was there investigating and they
asked Mynette Dennis for some paperwork
regarding my job description for the ER,
which should have been in place before my
employment. Mynette went into the clinic and
wrote the information in, backdated it and
stated that it had been in place all through
my employment.
The substance of Haley’s testimony was that she
personally had been asked to backdate a document during the COBRA
investigation.
Haley did not testify that she was in the
presence of Howell and Dennis when Dennis allegedly asked Howell
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to backdate a document.
However, the trial court allowed Haley
to testify and stated:
I believe that it ought to be admitted,
because I believe Ms. Dennis, instead of just
saying no, I did not ask Ms. Howell to alter
documents. She said no, it just wasn’t done,
we had them there, and I believe it does go
to impeach her as to the issue of credibility
of Ms. Dennis, so I’m going to admit it.
After reviewing the record, we agree that Dennis opened the door
to Haley’s rebuttal testimony.
In her testimony, Dennis not only
denied that she had asked Howell to backdate a document, but
repeatedly maintained that all of the documents were in place
during the investigation and thus it was not necessary to
backdate anything.
The hospital relies on Cincinnati, N.O. & T.P.Ry.Co. v.
Prewitt’s Adm’r,15 which involved an action for the wrongful
death of a young man crossing a railroad track in his car.
An
issue arose as to whether the railroad’s watchman was at his
watch at the time of the accident and whether he sounded an
alarm.
The time of the accident was 2:45 a.m.
On cross-
examination the plaintiff asked the watchman if he was at his
post at 10:30 p.m. and 12:30 a.m.
After the watchman claimed he
was at his post, the plaintiff called witnesses to testify that
he was not.
15
The Court reversed the trial court and ruled that if
203 Ky. 147, 262 S.W. 1 (1924).
-21-
a witness is cross-examined as to a collateral fact his answer is
conclusive.16
In the case sub judice, the issue is whether Dennis had
the necessary policy and procedures in place and whether she
requested or instructed Howell to backdate a document.
In her
testimony, Dennis broadly denied that the incident took place,
but more importantly, she testified that everything was in order
during the investigation.
We believe the case sub judice is
distinguishable from Prewitt because in Prewitt it was irrelevant
whether the watchman was at his watch at any other time other
than when the accident occurred.
In the present case, whether
all the hospital’s necessary paperwork was in order during the
investigation was clearly relevant.
The determination of whether
a matter is collateral is for the trial court to determine and
thus its decision is reviewed under the abuse of discretion
standard.17
We find no abuse of discretion by the trial court in
allowing this testimony by Haley.
The hospital’s final claim of error is that the trial
court abused its discretion by allowing the introduction of
character evidence.
The hospital argues that two former
employees, Linda Frey and Joann Ashby, testified for the purpose
of showing Dennis’ lack of character for truth and veracity.
16
Id. at 6.
17
Wickware v. Commonwealth, Ky., 444 S.W.2d 272, 275-76
(1969).
-22-
The
hospital argues that the sole purpose of their testimony was to
inflame the jury and thus it should have been excluded.
After reviewing the record, it is clear that Frey and
Ashby served a purpose other than inflaming the jury.
Both Frey
and Ashby were able to corroborate Cotton’s and Howell’s
testimony that the work environment changed after Dennis’
conviction for shoplifting.
More specifically, they both were
able to support Cotton’s and Howell’s version of the facts that
Dennis wrongfully singled them out and treated them significantly
different after the conviction.
After the proper foundation had been presented, both
Frey and Ashby were asked to give their opinion of Dennis’
reputation in the community.
Both of them testified that she had
a reputation for dishonesty.
Kentucky Rules of Evidence 608
states:
Opinion and reputation evidence of
character. The credibility of a witness may
be attacked or supported by evidence in the
form of opinion or reputation, but subject to
the limitation that the evidence may refer
only to general reputation in the community.
Both Frey and Ashby satisfied the requirements of KRE 608, thus
their testimony was properly admitted.
Having found no reversible error, the judgment of the
McLean Circuit Court is affirmed.
ALL CONCUR.
-23-
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF FOR APPELLEES:
W. Keith Ransdell
Lexington, KY
Timothy R. Coleman
Morgantown, KY
Bradley P. Rhoads
Owensboro, KY
ORAL ARGUMENT FOR APPELLEES:
W. Keith Ransdell
Lexington
-24-
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