Racher v. Westlake Nursing Home Ltd.

• Decision Date: 28 September 2017
• Docket Number: No. 16-6011.,16-6011.
• Citation: 871 F.3d 1152
• Parties: 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, v. 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.
• Court: U.S. Court of Appeals — Tenth Circuit

871 F.3d 1152

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,

v. WESTLAKE NURSING HOME LIMITED PARTNERSHIP, d/b/a Quail Creek Nursing and Rehabilitation Center ; Westlake Management Company, a Texas corporation, Defendants–Appellants,andRon Lusk, an individual, Defendant.

No. 16-6011.

United States Court of Appeals, Tenth Circuit.

September 28, 2017

Jimmy K. Goodman (Harvey D. Ellis with him on the briefs), of Crowe & Dunlevy, Oklahoma City, Oklahoma, for Defendants-Appellants.

Kevin M. Coffey (Paul A. Harris with him on the brief), of Harris & Coffey, PLLC, Oklahoma City, Oklahoma, for Plaintiffs-Appellees.

Before BRISCOE, EBEL and PHILLIPS, Circuit Judges.

BRISCOE, Circuit Judge.

Eryetha 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.

I

Eryetha 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.

Caroline 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.

Doris 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.

Sometime 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.

Five 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.

On 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.

All 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.

In 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.

At 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....