In an unpublished 16-page opinion issued August 2, 2018, a unanimous 3-Judge panel of the U.S. Fourth Circuit Court of Appeals upheld jury awards of punitive damages in the wrongful death cases in Kee v. Blue Ridge of Raleigh, LLC, et al., No. 17-1900. Although decided under neighboring North Carolina law, Kee is instructive since Virginia too is in the federal 4th Circuit.

Kee is a consolidated appeal of 3 medical malpractice jury cases against a nursing facility, its owner, and its manager. The first case awarded compensatory damages of only $50,000.00 with punitive damages of $1,523,939.16; the second case awarded $300,000.00 compensatory damages and $1,523,939.16 punitive damages; and the third case also awarded $300,000.00 compensatory damages and $1,523,939.16 punitive damages. Id. at 6.

Like Virginia, North Carolina allows punitive damages for “willful or wanton conduct,” id. at 7, which only requires “conscious and intentional disregard of and indifference to the rights and safety of others,” not “malicious” or “wicked” intent/purpose. Id. at 12-15. Also like Virginia, North Carolina allows punitive damages against corporations, limited liability companies, and partnerships for their “officers, directors, or managers,” i.e., “one who conducts, direct, or supervises something,” participating in or condoning the willful or wanton misconduct. Id. at 8-9.

Kee found that the Defendant nursing facility managers participated or condoned for 3 reasons. “First, the record clearly shows that Defendants’ manager . . . participated in the decisions regarding staffing and supplies”. Id. at 9-10. Second, “the extensive trial testimony that Defendants’ policy was to cut staffing to save money, viewed in a light most favorable to Plaintiffs and with all legitimate influences drawn in Plaintiffs’ favor, clearly and convincingly shows that staffing was cut because of company policy.” Id. at 11. Third, “there was clear and convincing evidence that Defendants were fully aware of the dangerously inadequate staffing levels yet did nothing or worse.” Id. at 11-12.