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Accordingly, the trial court erred in not granting the Appellants' motion for remittitur setting aside the punitive damages awards entered against them on the grounds that punitive damages are duplicative of the jury's award of damages for intentional infliction of emotional distress. See Mace, W.

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Based on the foregoing, the decision of the Circuit Court of Kanawha County is affirmed in part and reversed in part and remanded so that the trial court can enter an order remitting the punitive damages previously awarded in this case. I dissent in part because I simply fail to see a tort here. This is just another case where a hospital is forced to pay hundreds of thousands of dollars in damages when it did nothing wrong. I concur with the majority that the trial court erred in not granting the appellants' motion for remittitur, which would have set aside the punitive damages award.

I would, however, reverse the entire jury verdict in this case.

Here, I address two of the issues upon which I disagree with the majority. First, I disagree with the majority's conclusion that the trial court did not err in refusing to direct a verdict in favor of the appellants on the constructive retaliatory discharge issue. I also disagree with the unwarranted modification of this Court's holding in Dzinglski v.

Weirton Steel Corp. I agree with the appellants that the appellee failed, as a matter of law, to show that any of her actions were in support of a substantial public policy of the State and to establish the necessary elements of a constructive discharge. The substantial public policy exception certainly does not encompass every broad policy pronouncement found in the voluminous code of state regulations. Also, I do not believe the appellee established the necessary elements of a constructive retaliatory discharge.

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Concerning this issue, the majority states:. This evidence, however, is plainly not relevant to the necessary elements of a constructive retaliatory discharge. The conditions described above were the normal working conditions of the position held by the appellee. Anyone holding the same position of the appellee would have worked under these exact conditions.

Even if the appellee had not complained to and angered her supervisor, she would still have operated under the conditions described above.

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In other words, these conditions had nothing to do with retaliation. In constructive retaliatory discharge cases, the plaintiff must show a nexus between her actions in support of a substantial public policy and the creation of intolerable working conditions by the employer. Here, there is no such nexus. In fact, under the Court's reasoning here, anyone finding the regular conditions of her job stressful and demanding could simply quit and have a cause of action for constructive retaliatory discharge.

Absent the evidence concerning the demanding nature of the appellee's job, the appellee is left with evidence of a reprimand, a below average evaluation, and disputed testimony concerning denied requests for vacation time and transfers.

follow link Such evidence clearly does not rise to the level of showing conditions so intolerable that a reasonable person would be compelled to quit. In Mace v. By allowing the jury to consider punitive damages, the trial court permitted the jury to stack punitive damages upon punitive damages, thereby effectively imposing two punitive damage verdicts against Weirton Steel for the same acts. Dzinglski, W. The requirement of proof of physical trauma is to show the need for compensatory damages and guarantee that punitive damages are not awarded twice. It prevents an openendedness in the jury's assessment of damages.

In Syllabus Point 14 of the majority opinion, all of this is undone. This syllabus point is an invitation to a jury to stack punitive damages upon punitive damages. Not having the benefit of this syllabus point, the appellee in the instant case apparently did not cry big enough tears on the witness stand. It is an open invitation for the awarding of double recoveries. Further, I do not believe that Syllabus Point 15 of the majority opinion does much to mitigate this danger. The majority opinion reintroduces an openendedness into this area of the law that Dzinglski was designed to correct.

In conclusion, for the reasons stated above, I dissent in part.


I reiterate that I would reverse the entire jury verdict in this case. The judgment order was entered on January 2, According to the testimony of Darlene Surbaugh, who was a registered nurse in the unit during the relevant time period, the unit had 14 beds and the ages of children on the unit ranged from 9 to 18 years. The unit also took overflow patients and often these patients were under the age of 9. The weekend night shift was from p.


Friday night until a. Saturday morning, from p. Saturday night until a. Sunday morning, and from p. Sunday night until a. Sunday morning. According to Appellant Smith, when she became nurse manager, she began cost-cutting measures after careful assessment. One of those measures was to decrease staffing costs. According to the Appellee's undisputed testimony, it was CAMC's policy that wasting of a narcotic was to occur when a patient needed part of a dosage of a narcotic. Under those circumstances, another registered nurse was required to witness the nurse draw the dosage and dispose of the remaining unused portion of the narcotic.

Appellant Smith further testified that no other nurses ever complained about having only one nurse assigned to the shift. The Appellee, however, produced several nurses who testified that complaints by various nurses had been voiced over this staffing concern. The concerns raised by the Appellee with Mr. Finally, Dr. Kisner testified that the Appellee had verbally told her that she had reported her concerns to Janet Fairchild, the executive secretary for the West Virginia Board of Nurse Examiners.

There was, however, no further evidence offered by the Appellee to substantiate this claim. McKitrick testified that she had given the Appellee a very favorable evaluation, which was reflected in her narrative comments. In addition to the narrative comments, there are also numerical ratings that actually determine what pay raises, if any, are given. According to Ms. McKitrick, the highest numerical rating for ten different categories was an 8. Despite the favorable narrative commentary, Ms.

McKitrick gave the Appellee a numerical rating of only 3. The Appellee testified that Ms. McKitrick told her that after she showed the favorable narrative commentary with favorable ratings to Appellant Smith, Appellant Smith instructed her to lower the ratings that Ms. McKitrick was prepared to give. What favorable numerical ratings Ms. McKitrick would have given was not introduced in evidence at trial.

Ms McKitrick denied that she told the Appellee that Appellant Smith asked that her evaluation be changed. McKitrick further denied that Appellant Smith had asked her to downgrade the Appellee's evaluation. The only evidence that would support that the evaluation was changed is that Ms. McKitrick's overwhelming favorable narrative commentary regarding the Appellee simply did not correlate with the numerical ratings on the same performance categories. According to Appellant Smith's testimony, in the spring of , the Appellee approached her and accused her of blocking the Appellee's transfers within CAMC.

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Appellant Smith denied that she had ever done this. Appellant Smith also told the Appellee that she had never been contacted by any manager within CAMC and asked to give a reference with regard to the Appellee. Appellant Smith then testified that the Appellee asked her what recommendation she would give if asked. Appellant Smith testified that four other nurses on the unit had requested vacation time before the Appellee had and that, during prime vacation time, the rule is first come-first served. Further, under the attendance policy part-time employees, such as the Appellee, were to receive an oral warning if they incurred two occasions of absence within six months.