Advocat, Inc. v. Sauer

Citation111 S.W.3d 346,353 Ark. 29
Decision Date01 May 2003
Docket NumberNo. 02-189.,02-189.
PartiesADVOCAT, INC.; Diversicare Leasing Corporation, d/b/a Rich Mountain Nursing and Rehabilitation Center; and Diversicare Management Services Co. v. Lon C. SAUER, Individually, and as Administrator of the Estate of Margaretha Sauer, Deceased, and on Behalf of the Wrongful-Death Beneficiaries of Margaretha Sauer.
CourtSupreme Court of Arkansas

Dover Dixon Horne P.L.L.C., by: Darrell D. Dover; and Williams & Anderson LLP, by: Philip S. Anderson, Peter G. Kumpe, and Jess Askew III, Little Rock, for appellants.

Barrett & Deacon, by: D.P. Marshall Jr. and Leigh M. Chiles, Jonesboro, for amicus curiae American Health Care Association in support of appellants.

Friday, Eldredge & Clark, LLP, by: Kevin A. Crass, Texarkana, TX, for amicus curiae Associated Industries of Arkansas, Inc., and Arkansas State Chamber of Commerce in support of appellants.

Wilkes & McHugh, P.A. (Arkansas), by: Brian D. Reddick, Susan N. Childers, and Christine C. Althoff, Little Rock; Wilkes & McHugh, P.A. (Florida), by: Bennie Lazzara, Jr., Tampa, FL; Page, Thrailkill & McDaniel, by: Daniel B. Thrailkill and Patrick C. McDaniel, Mena; and Quattlebaum, Grooms, Tull & Burrow PLLC, by: Leon Holmes and E.B. Chiles IV, Little Rock, for appellee Lon C. Sauer.

Eubanks, Welch, Baker & Schulze, by: Morgan E. Welch, Little Rock; and Center for Medicare Advocacy, Inc., by: Toby S.Edelman, Washington, DC, for amicus curiae National Citizens' Coalition for Nursing Home Reform in support of appellee.


Appellants Advocat, Inc.; Diversicare Leasing Corporation, d/b/a Rich Mountain Nursing and Rehabilitation Center (Rich Mountain); and Diversicare Management Services Co. appeal various aspects of a total judgment amount of $78,425,000 in favor of appellee Lon C. Sauer, individually, and as Administrator of the Estate of Margaretha Sauer and on behalf of the wrongful-death beneficiaries of Margaretha Sauer (Sauer Estate). Advocat raises multiple points on appeal: (1) the compensatory and punitive damages are grossly excessive and were motivated by passion and prejudice; (2) the punitive-damages verdicts should be reversed due to insufficient evidence, violation of federal constitutional standards, and excessiveness under Arkansas law; (3) the trial court erred in not excluding surveys from the State's Office of Long Term Care; (4) there was insufficient evidence of liability against Advocat and Diversicare Management to support a finding of negligence or medical malpractice; (5) the verdict forms erroneously permitted the jury to duplicate damages; and (6) the trial court erred in submitting inherently erroneous, binding instructions to the jury. We hold that the circuit court abused its discretion in failing to grant a new trial on excessive damages or, alternatively, to order a remittitur. We affirm the judgment on condition of remittitur.


On July 19, 1998, Margaretha Sauer died at the Mena Medical Center following a five and one-half year stay at Rich Mountain. She was 93 years old. Mrs. Sauer's discharge summary revealed that the cause of her death was severe electrolyte abnormalities, with contributing factors of "Alzheimer's type, dementia[,]" and protein calorie malnutrition.

The events leading up to Mrs. Sauer's death are these. She had been scheduled for the insertion of a gastro-intestinal feeding tube into her stomach on July 6, 1998, but the surgery was delayed due to the doctor's unavailability. On July 18, 1998, at 8:00 a.m., a nursing note reveals that Mrs. Sauer refused her medication. Her vital signs then began to decline. On July 19, 1998, at 3:30 a.m., her vital signs were still declining, and, according to the nursing staff, she was not "acting right." At 5:00 a.m. that same morning, the nursing staff reported the developments to Dr. David Brown, her treating physician, who ordered that she be taken to the emergency room at the Mena Medical Center. She arrived at the hospital in a semi-comatose condition. She died about sixteen hours later on that same date.

Mrs. Sauer's physical condition at time of death was gleaned from nursing notes. She had lost fifteen pounds in the last month and was in need of a feeding tube. There were signs of bedsores on her body, stemming from lying in urine and excrement. She suffered from contractures from Alzheimer's Disease, which involved contraction of her limbs into her sockets. She also had a urinary infection and had been experiencing a foul vaginal discharge.

On January 12, 2000, the Sauer Estate filed a complaint against the appellants, and included as well Diversicare Corporation of America—Arkansas, and Diversicare Corporation of America as parties defendant.1 According to the complaint, Advocat was a Pennsylvania corporation and the parent company. Advocat owned eighty-six facilities in the southeast and Canada, sixty-four of which were nursing homes. Diversicare Leasing Corporation was an Arkansas corporation that did business as Rich Mountain Nursing and Rehabilitation Center. Diversicare Management Services Co. was a Tennessee corporation that held the permit for Rich Mountain to operate in the state. The complaint alleged several counts against the named defendants, including negligence, negligence per se, tort of outrage, breach of contract, and wrongful death. The complaint prayed for damages for medical expenses and costs, mental anguish, funeral expenses, and for Mrs. Sauer's pain and suffering prior to her death, as well as general and special damages, the costs of litigation, and punitive damages. A first amended complaint filed later dropped the negligence per se count and added a new count for medical malpractice.

The appellants generally denied the complaint and asserted affirmative defenses, including failure to allege facts sufficient to state a claim, failure to comply with Ark. R. Civ. P. 9(b) relating to allegations of fraud, negligence of others, preexisting condition, failure to mitigate, entitlement to set-off from any recovery, no proximate causation, and statute of limitations, among others. On June 13, 2001, the trial began and lasted eight days. Twenty-eight witnesses testified, and there were twenty-four binders of exhibits. At the trial's conclusion, the jury retired to consider four counts: ordinary negligence, medical malpractice, breach of contract, and wrongful death. The jury returned a verdict for the Sauer Estate on all counts submitted. It awarded compensatory damages of $5 million for ordinary negligence, $10 million for medical malpractice, $25,000 for breach of contract, and $100,000 for each of the surviving beneficiaries for wrongful death. The total judgment against the three appellants for compensatory damages was $15,400,000, with joint and several liability. An award of $25,000 was also entered separately against Diversicare Leasing Corporation for breach of contract. Punitive damages in the amount of $21 million were awarded separately against each of the three appellants, without joint and several liability, for a total punitive damage award of $63 million. Combined judgments totaling $78,425,000 were memorialized by order of the court.

On July 9, 2001, the appellants filed their motion for judgment notwithstanding the verdict and remittitur, or, in the alternative, for a new trial. A hearing was held on the motion, and on August 3, 2001, the circuit court issued a letter opinion in which it denied the motion. The court said that it was "unable to state that the evidence produced during this 9 day trial was insubstantial and that the jury's decision should be set aside." The court further wrote:

With respect to the Defendant's contentions in its Motion for JNOV or in the alternative a new trial, these have been previously ruled upon and I am convinced that those rulings should stand. As I mentioned at the conclusion of the hearing on the Defendant's present motion, the jury was presented with evidence that these three companies were operated as one company. Dep. of Mary Margaret Hamlett at p. 28.

The court concluded:

While the Court may very well believe that the amount of the verdicts both compensatory and punitive may be excessive, it has no authority to impose its belief over the decision of the jury.... However, a belief by a trial court that damages are excessive is not, standing alone, a sufficient ground for ordering a reduction because if that were the standard, the great discretion of the jury would be abrogated.

The court termed the verdict "very large" but said it was "at a loss as to how I can substitute my opinion for that of the jury. Obviously the jury must have concluded that Mrs. Sauer suffered from pain and suffering." As a final point, the court reiterated: "While I feel the verdict is extremely large, I just do not think I can enter a substitute of my belief for that of the jury in this case."

Regarding remittitur, the court ruled that de novo review was not its standard of review but was for the appellate court. The court further found that while the financial information of the appellant corporations would have been helpful in deciding whether the award for punitive damages should stand or be reduced, the appellants had the opportunity to submit the same information to the jury and chose not to do so. The court also discussed the criteria set out by the United States Supreme Court in BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996), relating to whether the size of the punitive-damage award violated the appellants' right to due process, but deferred to the jury and found no violation of the appellants' due process rights. On the same day as the letter opinion, an order was entered denying appellants' motion for judgment notwithstanding the verdict, remittitur, and new trial.

I. Excessive Compensatory Damages

The appellants first argue that the damage awards for negligence and medical...

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