W.Va. Div. of Corrs. & Rehab. v. Iacovone

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WEST VIRGINIA DIVISION OF CORRECTIONS AND REHABILITATION, Defendant Below, Petitioner v. FRANCIS IACOVONE, individually, and as Administrator of the Estate of Rocco Iacovone, Plaintiff Below, Respondent

No. 23-ICA-148

West Virginia Intermediate Court of Appeals

July 15, 2024

(Cir Ct. of Kanawha Cnty. No. 20-C-602)

MEMORANDUM DECISION

Petitioner West Virginia Division of Corrections and Rehabilitation ("WVDCR") appeals three orders of the Circuit Court of Kanawha County, which followed a jury trial: (1) the December 16, 2022, Judgment Order; (2) the March 10, 2023 Amended Judgment On Jury Verdict Order ("Amended Judgment Order"); and (3) the March 10, 2023, Proposed Order Denying the Division of Corrections and Rehabilitation's Rule 59 Motion for New Trial and Motion to Vacate Judgment on Jury Verdict ("Order Denying New Trial"). Below, the jury returned a verdict for Respondent Francis Iacovone, acting as administrator of the estate of his son, Rocco Iacovone, finding that WVDCR had acted with deliberate indifference in failing to provide timely medical care to Rocco Iacovone, an inmate at a WVDCR facility, resulting in his death.^[1]

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-11-4 (2022). After considering the parties' written and oral arguments, the record on appeal, and the applicable law, this Court finds that there is error in the lower tribunal's decision but no substantial question of law. This case satisfies the "limited circumstances" requirement of Rule 21 of the Rules of Appellate Procedure for resolution in a memorandum decision. For the reasons set forth below, we affirm, in part, and vacate, in part, the decision of the circuit court and remand this matter for further proceedings consistent with this decision.

In March of 2018, Rocco Iacovone was incarcerated at a WVDCR facility, the Huttonsville Correctional Complex ("Huttonsville"), in Randolph County, West Virginia. After entering the custody of WVDCR, Mr. Iacovone disclosed to WVDCR staff that he suffered from a heart condition, congenital aortic stenosis, and had a medical history of cardiac issues.

During the weekend of August 24, 2018, Mr. Iacovone contracted an infection. When Mr. Iacovone reported this to correctional staff, he was told to return to his cell. Over the course of that weekend, Mr. Iacovone's condition deteriorated, and he failed to appear for regularly scheduled activities including meals and standing counts of inmates. Eventually on August 28, 2018, Mr. Iacovone's cellmate reported to Billy Greene, a correctional counselor, that Mr. Iacovone was ill. After returning with the cellmate, Mr. Greene observed that Mr. Iacovone could speak, but he appeared visibly unwell and needed assistance moving. The two men obtained a wheelchair and transported Mr. Iacovone to the Huttonsville medical unit, operated by Wexford Health ("Wexford"). Wexford staff attempted to stabilize Mr. Iacovone and arranged for him to be air transported to a hospital. However, while in transit, Mr. Iacovone succumbed to his infection. A medical examination determined Mr. Iacovone's cause of death to be "the result of acute bacterial endocarditis due to complications of congenital aortic stenosis."

On July 20, 2020, Respondent Francis Iacovone brought a suit against WVDCR in the Circuit Court of Kanawha County, alleging, among other claims, deliberate indifference.^[2] Later, Respondent filed an amended complaint, adding Wexford and Dr. David Proctor, Wexford's medical director, as defendants. However, before trial, Respondent reached a settlement with Wexford and Dr. Proctor, and agreed to dismiss them from the suit.

Two weeks before trial, Respondent notified WVDCR of his intention to present the testimony of two undisclosed witnesses. These individuals, Michael Hoosier and William Hardman, were inmates who resided in the same cell area as Mr. Iacovone and possessed direct knowledge of the events being litigated. WVDCR objected, arguing that Respondent's failure to previously disclose these individuals by name was tantamount to trial by ambush. Despite WVDCR's objection, the circuit court permitted their testimony, concluding that WVDCR had notice of these individuals because, as inmates incarcerated in its custody, WVDCR possessed unrestricted access to these individuals, their identities, and its own internal investigation into these events.^[3]

On November 14, 2022, the matter proceeded to trial on the issue of deliberate indifference.^[4] On the third day of trial, Respondent called a medical expert, Bruce Charash, M.D., a Board-certified internist and cardiologist, to establish that WVDCR's failure to provide treatment played a causal role in Mr. Iacovone's death. Dr. Charash testified that Mr. Iacovone's infection spread to his blood, which, left untreated over the weekend, worsened and ultimately caused his body to enter septic shock. Dr. Charash opined that, had Mr. Iacovone received treatment the day before, he would have had a 90-95% chance of survival. On cross-examination, WVDCR sought to impeach Dr. Charash regarding prior deposition statements where he alleged Wexford had failed to educate Mr. Iacovone on the proper use of Motrin, given his heart condition.^[5] Respondents objected, arguing that WVDCR's line of questioning was outside the scope of direct examination, as Dr. Charash's testimony was offered to prove causation, not standard of care. The circuit court sustained Respondent's objection, concluding that Dr. Charash was a causation witness, noting he did not offer testimony regarding standard of care. Additionally, the circuit court expressed concern regarding WVDCR's intention to refer to Wexford as a "defendant" while examining Dr. Charash, as that characterization could confuse the jury, given that Wexford did not/was not appearing at trial.

After Respondent's objection was resolved, WVDCR sought clarification from the circuit court on a related point, expressing its intention to question Respondent Francis Iacovone "about the fact that he originally brought suit against Wexford because he felt they were at fault . . . and [to] ask him if he still feels that Wexford was at fault in the death of his son." Respondent again objected, arguing that the jury would draw improper inferences from discussing a defendant who is no longer a party. The circuit court sustained the objection, once again concluding that this line of questioning could lead the jury to speculate as to why Wexford was no longer involved in the litigation.

Before closing arguments, the parties conferred with the circuit court to discuss proposed jury instructions and which parties (and nonparties) should be listed on the verdict form. Regarding the verdict form, the parties agreed to list WVDCR, Wexford, and Rocco Iacovone on the form, allowing the jury to assess fault against each of them respectively. However, two sets of jury instructions remained disputed.

First, WVDCR requested a jury instruction regarding mitigation of damages, which would require the jury, in assessing the fault of the parties, to consider whether Mr. Iacovone had made reasonable efforts to mitigate his damages.^[6] The circuit court declined to give this instruction. In its later order denying WVDCR's post-trial motion for a new trial, the circuit court explained that Mr. Iacovone could not take affirmative action to mitigate his damages due to his incarceration. As an inmate, Mr. Iacovone was completely dependent upon WVDCR for medical care, and was not at liberty to seek treatment on his own. The remaining contested instructions defined the elements of deliberate indifference. The circuit court adopted Respondent's proposed instructions over WVDCR's, concluding Respondent had provided a more concise, less confusing statement of the law.

On November 17, 2022, the jury returned a verdict for Respondent, assigning 100% of fault to WVDCR and 0% to Mr. Iacovone and Wexford. The jury awarded Respondent $16,237.00 for funeral and burial expenses; $400,000 for lost earning capacity; $275,000 for lost household services; and $20,000.00 for pain and suffering, totaling $711,237.00.

The circuit court entered its Judgment Order on December 16, 2022, awarding Respondent pre- and post-judgment interest. Post-judgment interest was awarded on the total verdict at a 4% interest rate, running from the date of the verdict until paid. Prejudgment interest was awarded for each category of damages (except for pain and suffering) at variable rates:

prejudgment interest on the amount of $691,237.00 of the Jury's verdict as follows: at the rate of 4.5% from August 28, 2018 through December 31, 2018 ($10,652.50); at the rate of 5.5% from January 1, 2019 through December 31, 2019 ($38,018.03); at the rate of 4.75% from January 1, 2020 through December 31, 2020 ($32,833.75); at the rate of 4.0% from January 1, 2021 through December 31, 2021 ($27,649.48); and at the rate of 4.0% from January 1, 2022 through November 17, 2022 ($24,240.64); totaling $133,394.41 in prejudgment interest.

On December 30, 2022, WVDCR filed its Rule 59 motion, requesting a new trial based upon the circuit court's erroneous trial rulings and jury instructions. Additionally, WVDCR requested the judgment be amended with respect to the circuit court's calculation of pre- and post-judgment interest. A hearing on the motion was held on February 7, 2023. There the parties indicated they had reached a partial agreement regarding the judgment interest issues. Regarding prejudgment interest, the parties agreed that a single interest rate should have been applied, as opposed to the variable rates utilized in the Judgment Order. Regarding post-judgment interest, the parties agreed that the interest should...