DORIS RACHER, Co-Personal Representative of the Estate of Eryetha Mayberry, Deceased; SANDRA CISPER, Co-Personal Representative of the Estate of Eryetha Mayberry, Deceased; EARLENE ADKISSON, Co-Personal Representative of the Estate of Eryetha Mayberry, Deceased, Plaintiffs - Appellees,
WESTLAKE NURSING HOME LIMITED PARTNERSHIP, d/b/a Quail Creek Nursing and Rehabilitation Center; WESTLAKE MANAGEMENT COMPANY, a Texas corporation, Defendants-Appellants, and RON LUSK, an individual, Defendant.
FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF OKLAHOMA (D.C. No. 5:13-CV-00364-M)
K. Goodman (Harvey D. Ellis with him on the briefs), of Crowe
& Dunlevy, Oklahoma City, Oklahoma, for
M. Coffey (Paul A. Harris with him on the brief), of Harris
& Coffey, PLLC, Oklahoma City, Oklahoma, for
BRISCOE, EBEL and PHILLIPS, Circuit Judges.
BRISCOE, Circuit Judge.
Mayberry was abused by two certified nursing assistants while
in the care of Quail Creek Nursing Home, operated by Westlake
Nursing Home Limited Partnership and Westlake Management
Company (collectively "Quail Creek" or
"Westlake"). Mrs. Mayberry's three daughters
(collectively "plaintiffs") filed this diversity
action against Westlake under Oklahoma law for negligence,
negligence per se, and intentional infliction of emotional
distress. After a trial, the jury found for plaintiffs and
against Westlake on the claims of negligence and negligence
per se, and made a special finding that Westlake had acted
with reckless disregard for the rights of others. The jury
awarded $1.2 million in compensatory damages and $10, 000 in
punitive damages. Westlake appeals. Exercising jurisdiction
pursuant to 28 U.S.C. § 1291, we affirm.
Mayberry lived on her own until she was 90. Aplt. App. vol.
III, at 703. Sometime in 2008, Mrs. Mayberry's three
daughters moved her into Quail Creek Nursing Home. See
id. at 704, 719. Mrs. Mayberry suffered from severe
arthritis that made it very difficult for her to move and
required her to use a wheelchair. Id. at 704; Aplee.
Supp. App. vol. I, at 5. She also had difficulty
communicating due to dementia. Aplt. App. vol. III, at 705.
Kaseke began working at Quail Creek as a Certified Nursing
Assistant (CNA) in March of 2007. Aplee. Supp. App. vol. V,
at 115. Lucy Gakunga began working at Quail Creek in November
of 2008, also as a CNA. Aplee. Supp. App. vol. IV, at 55.
These two were Mrs. Mayberry's caretakers the entire time
Mrs. Mayberry lived at Quail Creek. Aplt. App. vol. IV, at
1047, Aplee. Br. at 6. Both Gakunga and Kaseke had numerous
write-ups in their personnel files for infractions including
excessive tardiness, leaving in the middle of a shift,
failure to show up for work, cell phone use, sleeping on the
job, and refusal to complete assigned duties, including an
incident in which five residents were left in wet diapers for
over an hour while Gakunga chatted with coworkers in the
hallway despite reprimand. Aplt. App. vol. III, at 776-96;
Aplee. Supp. App. vol. II, at 7-15. The personnel files also
indicate that Kaseke was clocking out before the required
rounds at the end of her shift, that she had been recommended
for termination in September of 2007, and that she had been
reprimanded again in June of 2008 for sleeping on the job,
which was "grounds for immediate termination, " but
was not terminated. Aplee. Supp. App. vol. III, at 16-18.
Despite this record, Kaseke was responsible for training new
CNAs on the proper treatment of residents at Quail Creek.
Aplt. App. vol. IV, at 890.
Racher, one of Mrs. Mayberry's daughters, testified at
trial that the family began to notice bruising on her
mother's hands and arms soon after Mrs. Mayberry moved
into Quail Creek. Aplt. App. vol. III, at 706-07. Mrs. Racher
further testified that Quail Creek was unable to explain the
bruising and did not seem properly concerned by the
family's repeated complaints. Id. at 705-07. In
approximately February of 2012, Mrs. Mayberry began crying
out for help and telling family members that someone was
hurting her mouth. Aplee. Supp. App. vol. I, at 5. Mrs.
Racher also testified that her mother began refusing to take
showers even though "she was always really fanatic about
cleanliness." Aplt. App. vol. III, at 709.
in 2011, Mrs. Mayberry's family began noticing items
missing from her room so they placed a hidden,
motion-activated video camera facing Mrs. Mayberry's bed.
Id. at 710; Aplee. Supp. App. vol. I, at 5. The
camera initially was not recording properly, but Mrs. Racher
replaced the SIM card and the family was eventually able to
view some videos recorded by the camera. Aplt. App. vol. III,
at 710-12. The camera may have started recording correctly
around December of 2011. Aplee. Supp. App. vol. I, at 5.
video clips from the camera were played for the jury. Aplt.
App. vol. III, at 715. Although the time line is disputed,
these clips were likely recorded between February and early
April of 2012. See id. at 720-24. These clips showed
two nursing home employees, later identified as Gakunga and
Kaseke, interacting with Mrs. Mayberry. Aplee. Supp. App.
vol. I, at 5. The videos have no audio, but show Gakunga
slapping Mrs. Mayberry in the face with latex gloves, wadding
up the gloves, stuffing them in Mrs. Mayberry's mouth,
and forcibly holding them there as Mrs. Mayberry attempts to
push Gakunga's hand away. Id. Kaseke is seen in
the videos watching this take place. Id. The videos
then show Gakunga and Kaseke roughly lifting Mrs. Mayberry
from her wheelchair into bed and Gakunga pushing on Mrs.
Mayberry's face in what appears to be an attempt to make
her lie down. Id. at 5-6. One clip shows Gakunga
pointing her finger at Mrs. Mayberry and apparently scolding
her or perhaps threatening her. Aplt. App. vol. III, at
751-52. Finally, the video clips show Gakunga
"performing some sort of compressions with both hands to
[Mrs. Mayberry's] torso." Aplee. Supp. App. vol. I,
at 6. Plaintiffs assert that this action was intended to
force Mrs. Mayberry to empty her bladder so the caretakers
would not have to change her diaper as often. Aplee. Br. at
3. Quail Creek and the caretakers denied any knowledge of
this practice, but acknowledged that there was no medical
justification for the action. Aplt. App. vol. III, at 745-56;
Aplt. App. vol. IV, at 991-92.
April 16, 2012, Mrs. Mayberry's family brought the video
to the attention of Quail Creek Nursing Home. Aplee. Supp.
App. vol. I, at 6. Quail Creek responded by calling the
police and isolating Gakunga and Kaseke in separate rooms,
where they were monitored to ensure they could not further
endanger the home's residents. Id.; Aplt. App.
vol. IV, at 882. Gakunga and Kaseke were arrested and charged
with caretaker abuse pursuant to Okla. Stat. tit. 21, §
843.1. Aplee. Supp. App. vol. I, at 4. Gakunga pled guilty,
served her sentence, and was then deported. Aplt. App. vol.
II, at 272. Kaseke disappeared while out on bail and her
whereabouts are currently unknown. Id.
three daughters testified that Mrs. Mayberry became withdrawn
during her stay at Quail Creek and they alleged that the
abuse caused Mrs. Mayberry's physical condition to
decline. Aplee. Supp. App. vol. I, at 4; Aplt. App. vol. III,
at 717; Aplt. App. vol. IV, at 1052-54, 1042-43. Mrs.
Mayberry died in July of 2012, just three months after the
abuse was discovered. Aplt. App. vol. III, at 717.
addition to the video evidence, plaintiffs presented evidence
at trial of two other incidents, both taking place on April
4, 2012. First, Ariel Pierce, a nursing student, testified
that, on April 4, 2012, she witnessed Gakunga strike Mrs.
Mayberry on the forehead and then put Mrs. Mayberry in a cold
shower. Aplt. App. vol. IV, at 842-43, 848. Pierce reported
this incident to Quail Creek. Id. at 843. Second,
another nursing student, Christina Gilbert, testified that
she witnessed Kaseke spray an unnamed resident in the face
with cold water so violently that the resident's dentures
fell out onto the shower floor. Id. at 851-52. This
incident also took place on April 4, 2012, and Gilbert
reported it to Quail Creek that day. Id. at 852.
trial, Quail Creek Executive Director Ginger Barsotti and
Director of Nursing Susan Easterling testified that the
conduct on the video was abuse and "utterly
intolerable." Aplt. App. vol. III, at 737-38; Aplt. App.
vol. IV, at 1028-29. Easterling also testified that the
intentional acts of Gakunga and Kaseke caused emotional
distress to Mrs. Mayberry. Id. at 1029. In addition
to these admissions that the abuse occurred and was
perpetrated by Quail Creek employees, there was ample
evidence that Quail Creek was directly negligent in failing
to investigate and report incidents of abuse. Quail Creek
Administrator Amanda Penrod testified that she could not
locate any record of an investigation relating to either of
the April 4, 2012 incidents reported by the nursing students
and further admitted that the Oklahoma State Department of
Health had no record of the incidents being reported as
required by Oklahoma law. Id. at 864-65. She
testified that, at the time, she did not know these incidents
were reported and so had no personal knowledge of any
investigation, but stated that an investigation would have
been completed by Easterling. Id. at 865. Easterling
then testified that she did not know why no record of the
investigation could be located and she could not recall any
details of the investigation, though she insisted that she
had completed one because she claimed that she or Penrod
"investigated all allegations" and took them
"very seriously." Id. at 1019-28.
Easterling could not explain why Quail Creek was unable to
locate a Care Plan for Mrs. Mayberry even though such a plan
is required by law. Id. at 1001-03. Further, she
could not explain why no effort was made to find out why Mrs.
Mayberry began calling out for help. Id. at 1011-16.
Easterling also struggled to find information in Mrs.
Mayberry's chart, was unable to explain the organization
of the chart or where certain types of care information would
be recorded, and could not identify the nurse aides in the
video even though she was the director of nursing at the time
and these employees had worked at Quail Creek for several
years. See id. at 1001-16.
testified (by deposition read at trial) that she had not done
anything wrong and that she treated Mrs. Mayberry the same
every day. Id. at 960-62. She refused to watch the
video of the abuse and so was unable to comment on her
actions in it. Id. at 960. When asked whether she
treated Mrs. Mayberry any differently either before or during
the incident, Gakunga responded: "Before that incident,
no. During that, there is a video, so that means I did it. I
don't remember exactly when or what shift or what the
time was." Id. Similarly, when asked if she had
ever done anything improper, she stated:
I mean I worked everyday, I would say everyday, and have
never ever done something wrong. If I did it, maybe I
wasn't even thinking about it. Like as the slapping of
the gloves, that's wrong, and I know it is wrong, and the
video shows it, so I am wrong. I did it and I'm wrong.
But, as I said, it is about remembering the exact time, so it
is wrong at the end of the day.
Id. at 975.
was unable to describe Mrs. Mayberry's physical condition
or the proper way to care for her. See id. at
965-66. She also was unable to describe any of her actions
that would constitute abuse of Mrs. Mayberry other than
repeating what had been told to her by her criminal defense
counsel. See id. at 960-64. When asked what Quail
Creek had taught her about abuse, Gakunga responded "I
don't know." Id. at 970. When asked to
describe an act she would consider abusive, her response was
"[t]he fact that the glove and the-I don't know what
to call that." Id. The defense attorney asked
if she meant "[u]sing your hands up and down on the
face?" and she responded "[o]n the side that I was,
jury was instructed as to negligence, negligence per se, and
intentional infliction of emotional distress, including an
instruction on vicarious liability. Aplt. App. vol. II, at
457-64. The jury was further instructed as to the possibility
of punitive damages if the defendant acted with reckless
disregard for the rights of others. Id. at 467. At
the conclusion of the evidence in the first phase of the
trial, the jury was sent to deliberate on the issues of
liability, reckless disregard, and the amount of compensatory
damages. The jury found that Westlake was liable on theories
of negligence and negligence per se, that Westlake acted with
reckless disregard for the rights of others, and that
plaintiffs were entitled to compensatory damages in the sum
of $1.2 million. Id. at 475-76. Following that
verdict, counsel was given the opportunity to present their
arguments as to punitive damages and the jury received an
additional instruction. After a second opportunity to
deliberate, the jury returned a verdict for punitive damages
in the amount of $10, 000. Id. at 477. Following the
jury verdict, Westlake moved to alter or amend the judgment
and moved for remittitur or alternatively a new trial, both
pursuant to Federal Rule of Civil Procedure 59. The district
court denied both motions.
now appeals and raises four issues: (1) whether the district
court erred by failing to reduce compensatory damages to the
statutory cap of $350, 000; (2) whether the district court
erred by failing to reduce the allegedly excessive
compensatory damage award of $1.2 million or, in the
alternative, to grant a new trial; (3) whether the district
court erred by allowing allegedly improper closing argument
regarding punitive damages during the first phase of the
trial; and (4) whether the district court erred by admitting
evidence of an unrelated incident subject to a limiting
review the district court's decisions on each of these
issues for abuse of discretion. Gasperini v. Ctr. for
Humanities, Inc., 518 U.S. 415, 434-35 (1996) (motion to
alter or amend a judgment); Hill v. J.B. Hunt Transp.,
Inc., 815 F.3d 651, 668 (10th Cir. 2016) (same);
Whittenburg v. Werner Enters. Inc., 561 F.3d 1122,
1127 (10th Cir. 2009) (motion for a new trial based on an
allegedly prejudicial closing argument); Sanjuan v. IBP,
Inc., 160 F.3d 1291, 1296 (10th Cir. 1998)
(motion for a new trial based on the allegedly erroneous
admission of evidence).
obtain a reversal for the allegedly erroneous admission of
evidence or closing argument, an appellant also must make a
showing of prejudice. Even if an argument was "improper,
a judgment will not be disturbed unless it clearly appears
that the challenged remarks influenced the verdict."
Lambert v. Midwest City Mem'l Hosp. Auth., 671
F.2d 372, 375 (10th Cir. 1982). Similarly, the court may set
aside a jury verdict due to erroneously admitted evidence
only if ...