Lowndes Cnty. Health Servs., LLC v. Copeland, A19A1552, A19A1553

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: Mercier, Judge.
• Citation: 834 S.E.2d 322,352 Ga.App. 233
• Parties: LOWNDES COUNTY HEALTH SERVICES, LLC v. COPELAND et al.; and vice versa.
• Docket Number: A19A1552, A19A1553
• Decision Date: 10 October 2019

352 Ga.App. 233
834 S.E.2d 322

LOWNDES COUNTY HEALTH SERVICES, LLC
v.
COPELAND et al.; and vice versa.

A19A1552, A19A1553

Court of Appeals of Georgia.

October 10, 2019
Certiorari Granted June 1, 2020
Certiorari Dismissed as Improvidently Granted December 7, 2020

834 S.E.2d 324

Huff Powell & Bailey, R. Page Powell, Jr., Jeffrey D. Braintwain, Brian K. Mathis, Trevor P. Newberry ; Anspach Meeks Ellenberger, Robert M. Anspach, for Lowndes County Health Services, LLC. The Hadden Law Firm, John D. Hadden ; Connor & Connor, Kenneth L. Connor, C. Caleb Connor ; Bret S. Moore, for Copeland et al.

Mercier, Judge.

352 Ga.App. 233

Following the death of Bobby Copeland ("Bobby"), Gregory Copeland, individually and as Bobby's son, and Marier House, as the administrator of Bobby's estate, (collectively, "the plaintiffs") sued Lowndes County Health Services, LLC d/b/a Heritage Healthcare at Holly Hill ("Holly Hill") for wrongful death and other damages. A jury found Holly Hill liable for both professional and ordinary negligence. It awarded the plaintiffs over $7.5 million in damages, but allocated fault between Holly Hill and four nonparties to the trial. Based on the jury's allocation of fault, the trial court entered final judgment for the plaintiffs against Holly Hill for $1,524,240.

In Case No. A19A1552, Holly Hill appeals the final judgment entered on the jury's verdict and the denial of its motion for new trial, arguing that the trial court erred in (1) rejecting its challenge to the plaintiffs’ use of a peremptory jury strike, and (2) denying its motion for directed verdict on plaintiffs’ negligent staffing claim. In their cross-appeal in Case No. A19A1553, the plaintiffs assert that the trial court erred in (1) denying their motion for directed verdict as to apportionment, and (2) using a misleading and confusing special verdict form. For reasons that follow, we affirm.

Viewed in the light most favorable to the jury's verdict, see Ford Motor Co. v. Gibson , 283 Ga. 398, 399, 659 S.E.2d 346 (2008), the evidence showed that Bobby lived at Holly Hill, a skilled nursing facility in Valdosta, from 2001 until his death in 2012 at the age of 71. Around 10:45 p.m. on October 25, 2012, Faye Jenkins, a licensed practical nurse ("LPN") employed by Holly Hill and assigned to the 11:00 p.m. to 7:00 a.m. "night shift," entered Bobby's room and saw brown vomit on his clothing. Noting that Bobby's stomach was "slightly distended," Jenkins listened to his abdomen with her

352 Ga.App. 234

stethoscope and detected "a lack of bowel sounds in three of four quadrants[.]" She then called Shawn Tywon, physician's assistant to Dr. Douglas Moss, Holly Hill's medical director.¹ Jenkins related her observations and asked whether Bobby should go to the hospital for evaluation. Tywon told her not to send Bobby to the hospital, but he ordered a blood test, an abdominal x-ray, and nausea medication for Bobby. Jenkins checked on Bobby throughout her shift. She heard him moan at one point during the night and noticed no change in his bowel sounds.

As the end of her shift approached on October 26, 2012, Jenkins reported Bobby's condition to the nurse coming on duty at 7:00 a.m., as well as to Registered Nurse ("RN") Lisa Sirmans, Holly Hill's lower case, who arrived at the facility around 6:30 a.m. Concerned about Bobby, Jenkins asked Sirmans "to please get something done about this resident," and Sirmans responded that "she would." According to Bobby's medical chart, however, he was not actually assessed until 9:15 a.m., when Kaye Frazier, an RN who served as Holly Hill's lower case, examined him. Frazier noted that Bobby's abdomen was distended and that he was complaining of abdominal pain.

The x-ray ordered the night before by Tywon was completed at Holly Hill just before 10:00 a.m. Tywon examined Bobby at 10:15 a.m., and approximately 45 minutes later, an ambulance transported Bobby to South Georgia Medical Center ("SGMC"), where he was treated in the emergency room by a team that included Dr. Matthew Shannon, Moss, and Tywon. Bobby was transferred to the hospital's intensive care unit around 5:30 p.m. He died later that night

834 S.E.2d 325

from complications related to aspirating fecal material, a risk associated with bowel obstructions.

The jury found Holly Hill liable to the plaintiffs in both professional and ordinary negligence, and it awarded the plaintiffs over $7.5 million in compensatory damages. Jurors, however, allocated only 20 percent of the fault to Holly Hill. They apportioned the remainder of the fault to nonparties Tywon (35 percent), Moss (35 percent), SGMC (5 percent), and Shannon (5 percent). The trial court entered judgment against Holly Hill for 20 percent of the damages awarded, and these appeals followed.

352 Ga.App. 235

Case No. A19A1552

1. Holly Hill argues that the trial court erred in denying its motion, brought pursuant to Batson v. Kentucky , 476 U. S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), challenging the plaintiffs’ decision to strike Juror No. 11 from the jury pool. In Batson , the United States Supreme Court barred the government from striking prospective jurors from a jury panel based upon race. See id. at 84-89 (II) (A), (B), 106 S.Ct. 1712 ; AIKG, LLC v. Marshall , 350 Ga. App. 413, 418, 829 S.E.2d 608 (2019). The Supreme Court later extended this holding to civil litigants, prohibiting race-based peremptory strikes in civil trials. See Edmonson v. Leesville Concrete Co. , 500 U. S. 614, 630 (II) (B) 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991) ; AIKG, LLC , supra.

In both criminal and civil proceedings, a Batson challenge is analyzed using a three-pronged test:

(1) the opponent of a peremptory challenge must make a prima facie showing of racial discrimination; (2) the proponent of the strike must then provide a race-neutral explanation for the strike; and (3) the court must decide whether the opponent of the strike has proven discriminatory intent.

AIKG, LLC , supra (citation and punctuation omitted). On appeal, we are mindful that the trial court's resolution of a Batson motion "rests largely upon assessment of the proponent's state of mind and credibility; it therefore lies peculiarly within a trial judge's province." Id. (citation and punctuation omitted). A trial court's determination as to whether the opponent of a jury strike proved discriminatory intent is "entitled to great deference and will be affirmed unless clearly erroneous." Id. (citation and punctuation omitted).

Noting that all six of the individuals stricken by plaintiffs’ counsel were white, Holly Hill argued at trial that the strikes "ha[d] to do with race." In response, plaintiffs’ counsel provided the reasoning behind the strikes. As to Juror No. 11, counsel stated:

[Juror No. 11] works in a sheet metal factory. He works in South Lowndes County which based off our demographic research of this group and with our discussion with other counsel who are right in this area, suggested that they may not be [an] area that is friendly towards African Americans which our client is. So, we have concerns based off his blue-collar employment, as well as ... the demographics of

352 Ga.App. 236

where he resides that he may have some innate prejudice toward our client.

...

In addition, ... this is one of the jurors about whom we have the least information. We know that he's married and is a sheet metal worker and works cranes and lives in ... South Lowndes, ... and beyond that, we don't really have much information. He was a big question mark in our minds because nobody really developed his testimony much.

After the plaintiffs’ explanation, counsel for Holly Hill asserted:

[T]hat was the basis of my [ Batson ] objection as we did not have much information on him, so the fact that we didn't have any information on him and he was one of their strikes, was a cause of concern for us.

The trial court rejected the Batson challenge following counsels’ exchange, stating:

Okay, well, as I understand a Batson Challenge, ... once they put forth an explanation, the burden then shifts to you, [Holly Hill], to prove that it was some type of purposeful discrimination. I don't hear that coming forward, so, for that reason the Court's going to deny your Batson Challenge as to Juror Number [11].

The trial court clarified this ruling in its order denying Holly Hill's motion for new

834 S.E.2d 326

trial, concluding that the plaintiffs had offered race-neutral reasons for striking Juror No. 11 and that the strike "was not racially based."

On appeal, Holly Hill argues that the plaintiffs’ explanation for striking Juror No. 11 was facially discriminatory, which required the trial court to uphold its Batson challenge and disallow the strike. We disagree. "To qualify as race-neutral, an explanation need not be persuasive, plausible or even make sense. It must simply be based on something other than the race of the juror." O'Hannon v. State , 240 Ga. App. 706, 707 (1), 524 S.E.2d...