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T. Thomas Metier
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If a Statute Caps Damages in a Tort Proceeding, is It Considered an Affirmative Defense?

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The United States Court of Appeals for the Tenth Circuit decided what was appropriate in Racher v. Westlake Nursing, No. 16-6011, (10th Cir. 2017).

In this case, Eryetha Mayberry was a patient at the Quail Creek Nursing Home, which was run by Westlake Nursing Home (“Westlake”). She went into the nursing home at 90, and was repeatedly abused by two of the caregivers employed by Westlake. The employees responsible 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 they chatted with coworkers in the hallway despite reprimand. All of these things were grounds for immediate termination, according to the company, but neither was fired and one of the employees was charged with training new CNAs on how to take care of patients.

The plaintiffs, Mrs. Mayberry’s daughters, sued Westlake after their mother’s death. Shortly after she began living at Quail Creek, her daughters started noticing bruising that the nursing home could not explain. Their mother also claimed someone was hurting her mouth. She had dementia, so it was difficult to get useful information from the woman. After unsatisfying responses from the nursing home, the daughters installed hidden cameras in their mother’s room, to record the employees’ actions. The cameras caught the employees physically abusing their mother, slapping her with latex gloves, cramming the gloves into the woman’s mouth, and pressing down on her bladder to hurry up her evacuation for the employees’ convenience. Once the recordings were shown to management of the nursing home, the employees were terminated.

The plaintiffs, Mrs. Mayberry’s daughters, sued Westlake after their mother’s death. They sued under Oklahoma law for negligence, negligence per se, and intentional infliction of emotional distress. The jury found for the plaintiffs and awarded them $1.2 million dollars in compensatory damages and then added $10,000 for punitive damages.

Westlake appealed the ruling, saying the district court erred by failing to reduce compensatory damages to the statutory cap of $350,000, and said the district court erred by failing to reduce the compensatory damage award of $1.2 million or, in the alternative, to grant a new trial. Westlake also claimed the district court erred by allowing allegedly improper closing argument regarding punitive damages during the first phase of the trial. Westlake also said the district court erred by admitting evidence of an unrelated incident subject to a limiting instruction.

In a civil action arising from a claimed bodily injury, Oklahoma law caps noneconomic damages at $350,000 unless special findings are made. After the jury awarded $1.2 million in noneconomic compensatory damages to the plaintiffs, Westlake moved to alter or amend the judgment, arguing that the award should be reduced to $350,000 because the required procedures for lifting the cap had not been followed. The district court denied Westlake’s motion, concluding that the requirements for lifting the cap were satisfied in this case. Turns out the damage cap is an affirmative defense that Westlake waived by failing to mention it at trial. This Court examined that question in light of Westlake’s appeal. The majority of federal circuits have held that a damages cap must be pled as an affirmative defense in federal court. This Court agree and, therefore, conclude that Oklahoma’s cap was an affirmative defense that needed to be brought up during trial. In the absence of the affirmative defense, it was waived. This Court affirms the lower court’s award of compensatory and punitive damages.

The Metier Law Firm is committed to assisting people with personal injury claims throughout Colorado, Wyoming and Nebraska, and we frequently serve as co-counsel to law firms nationwide. Tom Metier recently secured the largest personal injury verdict in Colorado