Appalachian Regional Healthcare, Inc. v. U.S. Nursing Corporation

Filing 385

OPINION AND ORDER: With this action, Appalachian Regional Healthcare, Inc. has been seeking indemnification for amounts it expended to defend and settle a state court action that was filed against it in 2008. After a trial in this Court on indemnif ication claim, a jury ruled in Appalachian's favor. The case is now before the Court on remand from 6CCA to determine if an error in one of Court's evidentiary rulings requires a new trial. The Court concludes it does not. Thus, the Cou rt's ruling precluding any such evidence did not affect U.S. Nursing's substantial rights. Justice does not require a new trial, setting aside the verdict, or otherwise disturbing the judgment entered in this case. Signed by Judge Karen K. Caldwell on 9/24/2021. (RCB)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
PIKEVILLE
APPALCHIAN REGIONAL
HEALTHCARE, INC.,

CIVIL NO. 7:14-122-KKC-EBA

Plaintiff,
V.

OPINION AND ORDER

U.S. NURSING CORPORATION,
Defendant.

********
With this action, Appalachian Regional Healthcare, Inc. has been seeking
indemnification for the amounts it expended to defend and settle a state court action
that was filed against it in 2008. After a trial in this Court on the indemnification claim,
a jury ruled in Appalachian's favor. The case is now before the Court on remand from the
United States Court of Appeals for the Sixth Circuit to determine if an error in one of the
Court's evidentiary rulings requires a new trial. See Appalachian Reg'l Healthcare, Inc.
v. U.S. Nursing Corp., 824 F. App'x 360, 370 (6th Cir. 2020). The Court concludes it does
not.
***
Appalachian provides medical services in Eastern Kentucky, including at its
hospital located in Whitesburg, Kentucky. Defendant U.S. Nursing Corporation is a
staffing agency that provided nurses to Appalachian on a temporary basis when
Appalachian was short-staffed. The staffing agreement between the parties required
U.S. Nursing to indemnify Appalachian from "any and all liability or damage that arises

from . . . the negligent or intentional act or omission" of U.S. Nursing or its employees.
(DE 52-1, Staffing Agreement, § D(15)).
The state court action that forms the basis for Appalachian’s indemnification
claim was filed by Ralph Profitt and his wife after Proffitt suffered a severe spinal cord
injury while working at a sawmill in 2007. Some co-workers (David English and Ken
Jaworski) drove Profitt in a pick-up truck from the workplace to a hospital in
Whitesburg Kentucky that is operated by Appalachian. In the state court action, Profitt
alleged that his injuries were worsened when a nurse moved him into the hospital
emergency room ("ER") without stabilizing and immobilizing him. (DE 242-9, Amended
Complaint.)
There was no dispute that the nurse who moved Profitt was female. Significant to
this case, two nurses working at the hospital at the time of the incident – Sheila Hurt
and Roxanna Parsons – were Appalachian employees. One nurse – Constance Foote –
was a U.S. Nursing employee. These three nurses were the only female nurses in the ER
on the night in question. (DE 380, U.S. Nursing Br. at 1; DE 383, U.S. Nursing Reply at
1.) If Nurse Foote was the nurse who moved Profitt into the ER, then, pursuant to the
indemnification agreement, U.S. Nursing was potentially liable to Appalachian for the
actions of its employee. If, on the other hand, Nurse Foote did not move Profitt, then U.S.
Nursing could not possibly be liable to Appalachian.
In the state court action, there was never any real dispute about whether Nurse
Foote was the nurse who moved Profitt. Profitt and his co-worker English were the only
witnesses to the event who recalled the identity of the nurse. Both identified Nurse
Foote. There was no argument or evidence in state court that either Hurt or Parsons was
the nurse who moved Profitt into the ER. When Hurt and Parsons pointed that out to
the state court in a motion for summary judgment (DE 239-7), no party objected to their
2

dismissal from the action or pointed to any evidence that either nurse was the one who
moved Profitt. Thus, the state court granted both Appalachian nurses summary
judgment. (DE 208-13, Aug. 23, 2012 Order.) A couple of weeks later, U.S. Nursing filed
its own motion for summary judgment in the state court action arguing that it could not
be liable for Nurse Foote's actions under Kentucky's borrowed-servant doctrine. (DE 1-2,
Mot. for Summ. J.)
Years later, as the state court case progressed toward trial, the state court
entered an order prohibiting any party from arguing or introducing evidence at trial that
either Nurse Hurt or Parsons was the individual who moved Profitt into the ER. (DE
208-11, March 26, 2016 Order.) The state court noted that "all parties had an
opportunity to respond to the motions for summary judgment filed on behalf of Hurt and
Parsons" and that U.S. Nursing "chose not to do so." Thus, the state court determined
that "[t]he liability of Hurt and Parsons has been litigated and resolved."
On the last business day before the state court trial was set to commence in 2016,
both Appalachian and U.S. Nursing settled the claims against them. Appalachian paid
the Profitts $2 million. It incurred legal fees and costs of $823,522.71 in the state court
action. Appalachian demanded that U.S. Nursing indemnify it for those amounts. U.S.
Nursing refused do so, which caused Appalachian to bring this claim in federal court
against U.S. Nursing for breach of the indemnification provision of the staffing
agreement.
***
As with the underlying state court action, prior to trial on the indemnification
claim, this Court granted Appalachian’s motion (DE 239) to exclude any argument or
testimony at trial that Nurse Hurt or Parsons (the two Appalachian employees) moved
Profitt from the truck into the ER. In its motion, Appalachian argued that the liability of
3

Nurses Hurt and Parsons had been resolved by the state court's summary judgment
order and, thus, pursuant to the doctrine of issue preclusion, U.S. Nursing was barred
from relitigating that issue. In response (DE 271) to Appalachian's motion, U.S. Nursing
did not address the issue-preclusion argument. Instead, it argued that there was
evidence that Nurse Foote did not move Profitt and that it was entitled to present that
evidence at trial. (DE 271, Response at 4, 5.)
Appalachian's motion did not, however, ask the Court to prohibit U.S. Nursing
from introducing any evidence at trial that Nurse Foote did not move Profitt. The issue
raised by Appalachian's motion was whether U.S. Nursing could present evidence or
argue that Nurses Parsons or Hurt did move Profitt. In its response to the motion, U.S.
Nursing did not point to any such evidence regarding Nurse Parsons. As to Nurse Hurt,
U.S. Nursing pointed only to two pieces of evidence: 1) Profitt's hospital chart contained
Nurse Foote's name, initials, and handwriting, indicating she treated him after he was
inside the ER; and 2) Profitt testified that the nurse who transported him into the ER
later treated him. (DE 271, Response at 2.)
At a status conference just days before trial was set to begin, the Court asked
U.S. Nursing directly, "what evidence do you have that it was either Nurse Hurt or
Nurse Parsons" who moved Profitt. (DE 353, Tr. at 6799.) U.S. Nursing again pointed to
the same two pieces of evidence discussed above, both of which only involved Nurse
Hurt. It argued that 1) Profitt testified that the female who pushed him into the ER
"stayed with me the entire time and performed all procedures," (DE 353, Tr. at 6800);
and 2) Nurse Hurt's "name and initials are all over [Profitt's medical] chart." (DE 353,
Tr. at 6799.)
U.S. Nursing pointed to no evidence involving Nurse Parsons, and U.S. Nursing's
counsel made clear he intended to point the finger only at Nurse Hurt. He stated his
4

intent was to argue that "the testimony points to some nurse that was performing
procedures on Mr. Profitt and stayed with Mr. Profitt the entire time he was there. . . I
was planning to argue that Sheila Hurt's name is all over the chart. Sheila Hurt was the
one that went back and performed all the procedures." (DE 353, Tr. at 6813.) The Court
ultimately declined to reconsider its ruling precluding U.S. Nursing from producing this
evidence at trial. (DE 321, 348.)
After a seven-day trial, the jury returned a verdict for Appalachian. The Court
conducted the trial in two phases. In the first phase, the jury was asked to decide two
issues by a preponderance of the evidence: 1) whether Nurse Foote was the female who
helped move Profitt from the pick-up truck to the wheelchair outside of Appalachian’s
hospital in Whitesburg and then into the ER; and, if so, 2) whether, in doing so, Nurse
Foote breached the applicable standard of care. The jury answered both those questions
in the affirmative. (DE 331, Phase 1 Verdict.) In the second trial phase, the jury was
asked to decide whether the amounts that Appalachian Regional paid to defend against
and settle the Profitts’ claim were reasonable. The jury determined they were. (DE 335,
Phase 2 Verdict.) The Court entered judgment finding U.S. Nursing liable to
Appalachian for $2,823,522.71.(DE 338, Judgment.)
U.S. Nursing appealed. The Sixth Circuit determined that this Court erred “in
giving preclusive effect to the state court’s summary judgment ruling that neither Hurt
nor Parsons was the nurse who transported Profitt into the ER.” Appalachian Regional
Healthcare, Inc., 824 F. App'x at 366. The Sixth Circuit found that U.S. Nursing “did not
have a full and fair opportunity to litigate this issue at the state court level.” Id. This is
because it “had no legally protected interest in opposing the state court’s grant of
summary judgment for Hurt and Parsons.” Id. at 366-67. The Sixth Circuit remanded

5

the matter to this Court “to determine in the first instance whether or not the error in
granting the in limine motion requires a new trial.” Id. at 370.
***
On remand, the Court ordered the parties to brief that issue. Thus, the evidence
that U.S. Nursing claims implicates Nurses Hurt and Parsons is clear in this post-trial
phase of the litigation. Both parties agree that the Court’s analysis is governed by
Federal Rule of Civil Procedure 61, which provides:
Unless justice requires otherwise, no error in admitting or
excluding evidence – or any other error by the court or a party –
is ground for granting a new trial, for setting aside a verdict, or
for vacating, modifying, or otherwise disturbing a judgment or
order. At every stage of the proceeding, the court must disregard
all errors and defects that do not affect any party's substantial
rights.
Fed. R. Civ. P. 61.
In a civil case like this, the party seeking to have the judgment set aside because
of an erroneous ruling carries "the burden of showing that prejudice resulted." A. K. by &
Through Kocher v. Durham Sch. Servs., L.P., 969 F.3d 625, 629 (6th Cir. 2020). As to the
standard for determining whether prejudice resulted, Appalachian argues that the Court
should not grant a new trial unless U.S. Nursing proves that the excluded evidence
"would have caused a different outcome at trial." (DE 379, Br. at 5.) In support of this
standard, it cites the Sixth Circuit's decision in Tompkins v. Phillip Morris USA, Inc.,
362 F.3d 882, 891 (6th Cir. March 30, 2004), in which the Sixth Circuit stated, “Even if a
mistake has been made regarding the admission or exclusion of evidence, a new trial will
not be granted unless the evidence would have caused a different outcome at trial.” Id. at
891 (quoting Morales v. Am. Honda Motor Co., 151 F.3d 500, 514 (6th Cir. 1998)).
U.S. Nursing, on the other hand, argues the Court must grant a new trial if it
lacks a "fair assurance" that the outcome of the trial was not affected by evidentiary
6

error. (DE 382, U.S. Nursing Response at 4; DE 383, U.S. Nursing Reply at 10.) In
support of this standard, U.S. Nursing cites Beck v. Haik, 377 F.3d 624, 635 (6th Cir.
July 29, 2004), overruled on other grounds by Adkins v. Wolever, 554 F.3d 650 (6th Cir.
2009). In Beck, which was issued a few months after Tompkins, the court recognized that
several Sixth Circuit opinions in civil cases had employed the different-outcome standard
in determining whether the erroneous exclusion of evidence required a new trial. Id. at
635 (citing Morales v. Am. Honda Motor Co., Inc., 151 F.3d 500, 514 (6th Cir.1998); Nida
v. Plant Prot. Ass'n Nat., 7 F.3d 522, 527 (6th Cir.1993); Polk v. Yellow Freight Sys., Inc.,
876 F.2d 527, 532 (6th Cir.1989)). The court characterized the different-outcome
standard as more onerous than the fair-assurance standard because it requires the
movant to "show by a preponderance of the evidence that the error was outcomedeterminative." Id. The court ultimately decided to follow the fair-assurance standard
noting that it was employed by the Sixth Circuit in a published opinion in 1988 and that
one Sixth Circuit panel cannot overrule the decision of another. Id. (citing Schrand v.
Federal Pacific Elec. Co., 851 F.2d 152, 157 (6th Cir.1988)).
More recently, in Kocher v. Durham School Services, L.P. 969 F.3d 625, 629 (6th
Cir. 2020), the court stated that the burden is on the movant to show that "any errors
affected their substantial rights." Id (citing Fed. R. Evid. 103(a); Fed R. Civ. P. 61; 28
U.S.C. § 2111.) The court overruled Beck but only to the extent that it may have placed
the burden of proving harmlessness on the appellee (non-movant) in a civil case. Id. at
629-30. In a footnote, the court discussed the fair-assurance and different-outcome
standards in noting the court's inconsistency in "whether to presume harm from error."
Id. at 630, n.3.

7

This Court need not decide which standard to apply in this case because, under
any of the standards, U.S. Nursing has not proved that a new trial is warranted.
Determining whether to grant a new trial requires the Court to examine "the
proceedings in their entirety" to determine whether the error affected substantial rights.
Kendel v. Local 17-A United Food & Commercial Workers, 512 F. App'x 472, 480 (6th Cir.
2013). The court must consider the centrality of the issue that the Court's error arguably
affected and whether the evidence on the issue was one sided or "closely balanced." Id.
“[I]n a civil case, the tie goes to the verdict.” Kocher, 969 F.3d at 630.
The identity of the nurse who transported Profitt into the ER was a central issue
in this case. If U.S. Nursing employee Nurse Foote did not move Profitt, then U.S.
Nursing could not be liable to Appalachian. As to whether the evidence is closely
balanced on this issue, even considering all of U.S. Nursing's evolving arguments
regarding the evidence, the Court has at least a fair assurance that the outcome of the
trial was not affected by the Court's ruling. U.S. Nursing has not proved the Court's
error affected its substantial rights or that admitting any of the evidence that U.S.
Nursing now cites would have caused a different outcome at trial.
In making this ruling, the Court has reviewed the entire record, including the
evidence from the state court action that is part of the record. In its arguments at the
status hearing before trial and in its current briefing on the issue, U.S. Nursing has
relied largely on evidence that it argues shows U.S. Nursing employee Nurse Foote was
not the nurse who moved Profitt (her name and initials are not in Profitt's chart; she had
"no recollection of Mr. Profitt"; she testified her practice would have been to stabilize a
patient like Profitt before moving him; Foote tended to a pediatric patient the same
evening). (DE 380, Br. at 3-5; DE 353, Tr. at 6798) But the issue before the Court is not

8

whether there was sufficient evidence to support the jury's verdict that Nurse Foote was
the nurse who moved Profitt into the ER.
If that were the issue, it would be easily resolved. The only parties that
remembered the identity of the nurse who moved Profitt into the ER were Profitt and
English (Profitt's co-worker who accompanied him to the hospital). None of the nurses
recalled the incident. (Ct. Ex. C., Parsons Dep. at 15-16; Ct. Ex. D, Hurt Dep. at 11; DE
356, Foote Test. at 7329, 7331, 7332, 7334, 7336-37, 7344, 7349.)
English testified he was certain it was Foote that "actually brung the wheelchair
out and grabbed Ralph from the armpits and . . . put him in the chair." (DE 355, Tr. at
7119.) He testified that the same nurse then pushed the wheelchair into the ER. (DE
355, Tr. at 7122, 7125.) English testified that the reason he was able to recognize Nurse
Foote was because she was the nurse who came outside of the hospital and spoke with
him directly. (DE 355, Tr. at 7133-34.) He testified there was "no question in [his] mind"
that Nurse Foote moved Profitt. (DE 355, Tr. at 7119, 7135-36.) He had "no doubt" about
it. (DE 355, Tr. at 7135.)
Profitt testified that he was "75 percent positive" that Nurse Foote was "the one
that came out and got me out of the truck." (DE 355, Tr. at 7114) He testified that he
was present for the depositions of all three nurses. (DE 355 at 7114.) He did not
remember Nurse Parsons at all. (DE 355, Tr. at 7114.) He remembered Nurse Hurt from
inside the ER, and he did not think she was the one who moved him into the ER. (DE
355, Tr. at 7113-14.) He testified that the female who moved him "didn't have our slang,"
meaning she "talked like she wasn't from around here," and that she was "fairly petite."
(DE 355, Tr. at 7113.) He agreed that neither Nurse Parsons nor Nurse Hurt fit that
description. (DE 355, Tr. at 7113, 7115.) Nurse Foote, on the other hand, is "5'2" tall and
has never weighed more than 130 pounds." (DE 380, Br. at 7; DE 356, Tr. at 7353.) She
9

is not from Kentucky, had never been in Eastern Kentucky before she came to work for
Appalachian, and the night that Profitt arrived at the Whitesburg hospital was Nurse
Foote's first night on the job. (DE 356, Tr. at 7329.) She moved around frequently
growing up, graduated high school in Germany, and moved to Texas in 1986. (DE 356,
Tr. at 7354-55, 7328.) She worked at the Whitesburg hospital for only two months total.
(DE 356, Tr. at 7328.)
The evidence that Nurse Foote moved Profitt was certainly sufficient to support
the jury's verdict. 1 But, again, that is not the issue before the Court. The issue now is

1

Further, none of evidence cited by U.S. Nursing proves that Nurse Foote did not move

Profitt.
At the status conference conducted days before the trial, when explaining the evidence
that proved Nurse Foote did not move Profitt, U.S. Nursing asserted that Nurse Foote testified, "I
have no recollection of Mr. Profitt." (DE 353, Tr. at 6798.) But none of the nurses had any
recollection of the event.
U.S. Nursing has also pointed to the fact that Nurse Foote later testified at trial in federal
court that she did not move Profitt into the ER. (DE 356, Tr. at 7331, 7363). She testified,
however, that this belief was based on her usual standard of care, not because she recalled the
incident. (DE 7331, Tr. at 7331, 7334-35, 7344.) She testified repeatedly in this and the state
court action, consistent with U.S. Nursing's argument at the status conference, that she did not
recall the event or Profitt. (DE 356, Tr. at 7329, 7331, 7332, 7334, 7336-37, 7344, 7349.)
At the status conference prior to trial, as evidence that Foote did not move Profitt into the
ER, U.S. Nursing also argued that Foote's name and initials are not in Profitt's chart, and she
was attending a pediatric patient when Profitt was in the ER. (DE 353, Tr. at 6798-99.) Here,
U.S. Nursing relies on Profitt's testimony that the nurse who moved Profitt into the ER also
treated him. U.S. Nursing seems to argue that Nurse Foote could not have treated Profitt because
her initials are not in Profitt's charts and she treated the pediatric patient in the ER the same
evening. Thus, she could not be the nurse who moved him.
But the undisputed evidence showed that Nurse Foote more than likely did treat Profitt.
As will be discussed further, Ellen Wright, chief nursing officer and vice president of nursing at
Appalachian, testified that the customs of Appalachian would normally require "all hands on deck
when a trauma patient [like Profitt] comes into the emergency room." (DE 355, Tr. at 7154.) As
will also be discussed further, both English and Profitt testified that multiple nurses treated
Profitt while he was in the ER. Wright testified that two other patients were in the ER when
Profitt was, but that the records show "very minimal nursing intervention documented" in either
chart and that no nurses were in the rooms with the other patients when Profitt was in the ER.
(DE 355, Tr. at 7152.) Wright testified that, based on the normal practices of the hospital, Foote
would have been in the room treating Profitt while he was there. (DE 355, Tr. at 7160.) Wright
testified that the fact that Nurse Foote's name and initials are not in Profitt's chart does not
mean she did not treat him. (DE 355, Tr. at 7160.) In fact, she testified that, based on the normal
practices at the hospital, Foote likely did treat Profitt when he was in the ER. (DE 355, Tr. at
7160.)
As to the pediatric patient in particular, Wright testified that the patient's records did not
indicate that the patient needed continuous nursing care while in the ER and that the records

10

whether there is sufficient evidence that Nurse Parsons or Hurt moved him so that the
exclusion of that evidence affected U.S. Nursing's substantial rights.
In its current briefing, U.S. Nursing again points to the same two facts as proof
that Nurse Hurt moved Profitt as it did at the status conference before trial. First, it
argues that Profitt testified that the nurse "who wheeled him into the emergency room
was the same woman who initiated the procedures in the emergency room and stayed
with him the entire time." (DE 380, Br. at 5.) Second, Nurse Hurt's "name, initials and
handwriting appear throughout Profitt's medical chart." (DE 380, Br. at 4.)
Other undisputed evidence, however, would prevent a jury from fairly inferring
that, because a nurse treated Profitt in the ER, she was the nurse who moved him there.
The evidence is undisputed that multiple nurses treated Profitt after he was inside the
ER. Profitt testified that that the nurse who pushed him into the ER was "one of the ones
that stayed there." (DE 355, Tr. at 7108) (emphasis added). He remembered the nurse
who pushed him into the ER "talking to the other nurses as she came in." (DE 355, Tr. at
7108.) He testified, "After they got me in through the doors and over to the bed, there
was several people. So I don't know who was staying and didn't." (DE 355, Tr. at 7108.)
English confirmed this testimony. He testified that two nurses put Profitt into a hospital
bed when he was inside the ER, and neither was the one who moved him there. (DE 355,

indicated that Nurse Foote did not treat the patient while Profitt was in the ER. (DE 355, Tr. at
7156.) None of this testimony by Wright was disputed. Nurse Foote testified that she could not
say whether she attended the pediatric patient while Profitt was in the ER. (DE 356, Tr. at 733839.) She had no recollection of the patient. (DE 356, Tr. at 7368.) The only knowledge she had of
the patient was what the medical chart reflected (DE 356, Tr. at 7372), and she agreed that the
patient's medical chart reflected that she treated the patient only before Profitt arrived and after
Profitt left. (DE 356, Tr. at 7340.)
Finally, in the most recent briefing on the issue, U.S. Nursing points to English's
testimony that the nurse who moved Profitt had on white scrubs and to Nurse Foote's testimony
that she had not worn white scrubs since 1982. (DE 356, Tr. at 7353.) As will be discussed further
in this opinion, however, there is no evidence that any of the three nurses had on white scrubs the
night that Profitt arrived at the hospital.

11

Tr. at 7127-28). There were other people from the hospital in the room also. (DE 355, Tr.
at 7128.) Again, English was 100 percent certain that the nurse who moved Profitt was
Nurse Foote, and Profitt was 75 percent certain of that fact, and he agreed that neither
Nurse Hurt nor Parsons fit his description of the nurse who moved him.
The undisputed evidence is that the initials of all the nurses who treated Profitt
would not appear in his medical file. Ellen Wright, chief nursing officers and vice
president of nursing at Appalachian, testified that, when a trauma patient like Profitt
enters the ER for treatment, it would normally mean "all hands on deck." (DE 355, Tr. at
7154.) She testified, in such situations, there is a "whole flurry of activity" with
"everything happening sort of at one time, " and "it doesn't always get documented who
does what." (DE 355, Tr. at 7161.) She testified this is why it cannot be inferred that a
nurse in the ER did not treat a trauma patient simply because her names and initials
are not in the patient's chart. (DE 355, Tr. at 7160.)
Thus, a jury could not fairly infer that, simply because Nurse Hurt was one of the
nurses who treated Profitt, she was the one who moved him to the ER. U.S. Nursing has
pointed to no other evidence as to Nurse Hurt, and the Court has located none in the
record.
As to Nurse Parsons, U.S. Nursing now argues for the first time that some
evidence points to her as the one who moved Profitt into the ER. First, it asserts that
Wright testified in her deposition that "Parsons was stationed at the front desk the night
of Profitt's incident." (DE 380, U.S. Nursing Br. at 10 (citing Ellen Wright Dep. at 40-41.)
Citing Wright's testimony, it asserts that "Parsons was the only nurse working at the
front desk when [Ken] Jaworski presented to the emergency room." (DE 383, Reply at 6.)
Jaworski was Profitt's co-worker who drove Profitt and English to the hospital in his
truck. (DE 355, Tr. at 7098.)
12

Wright did not exactly testify that Nurse Parsons was stationed at the front desk
when Jaworski arrived in the ER or that she would have been the only nurse there.2
More importantly, however, there is no evidence that the identity of the person working
at the ER front desk that evening has anything to do with the identity of the nurse who
moved Profitt into the ER. U.S. Nursing cites the testimony of Jaworski. (DE 380, Br. at
11.) Jaworski testified that he parked in front of the ER, got out of the truck, and went
in. (DE 356, Tr. at 7382, 7386.) He testified that he went to the front desk in the ER and
told a female behind the counter that an injured man was outside. (DE 356, Tr. at 7382,
7386.) He testified that a female came out with a wheelchair. (DE 356, Tr. at 7383,
7387.) He explicitly stated that he did not know if the female behind the desk was the
same one who came out with the wheelchair. (DE 356, Tr. at 7387.)
The second piece of evidence that U.S. Nursing argues implicates Nurse Parsons
is English's testimony that the nurse who came out of the ER to get Profitt was wearing
white scrubs. (DE 380, U.S. Bf. at 11; DE 355, at 7134.) U.S. Nursing points to no
evidence, however, that Parsons ever wore white scrubs, let alone on the night in
question. U.S. Nursing asserts that Wright testified that "ARH-employed nurses did
wear white scrubs." (DE 380, U.S. Nursing Bf. at 11.) But that is not a correct
representation of Wright's testimony. In the testimony that U.S. Nursing cites, Wright
does not testify that Appalachian nurses wear white scrubs. Nor did she testify that
Appalachian nurses worse white scrubs on the night at issue. More importantly, Wright

In the Wright testimony cited by U.S. Nursing for this point, Wright testified that Parsons "often"
staffed the ER desk at the emergency room because her role was to both help with patient care and
to do clerical work. (Ct. Ex. D, Wright Dep. Test. at 40.) She did not testify, as U.S. Nursing argues,
that Parsons was the only Appalachian employee who had the duty to greet family members and
patients arriving at the ER. (DE 380, U.S. Nursing Br. at 10-11.) She testified that no other member
of the clerical staff would be involved in "greeting family members, or patients that are walking
into their ER, being wheeled into the ER, coming in by ambulance." (Wright Dep. at 40-41.)
2

13

did not testify that Nurse Parsons wore white scrubs ever, and she certainly did not
testify that Parsons wore white scrubs the night that Profitt arrived.
When asked whether nurses were required to wear a "particular uniform," Wright
testified, "At that time, I do not recall there being any specific uniform code. I don't
recall." (Ct. Ex. D, Wright Dep. Test. at 49.) She testified, "Nursing always wore some
type of nursing uniform. I just don't recall if there was any specific color code at that
time." (Ct. Ex. D, Wright Dep. Test. at 50.) She testified that Appalachian provided
money to registered nurses, and they purchased their own uniforms. She testified that
Appalachian provided uniforms for LPNs and nurse aides, but that "some also choose to
buy their own in addition." (Ct. Ex. D, Wright Dep. Test. at 50.) She testified that, if
Appalachian "had a color scheme at that time, we would provide [the LPNs and nurse
aides] whatever color that was. If there wasn't a specific color, they would select from a
catalog." (Ct. Ex. D, Wright Dep. Test. at 50.) When asked whether there was a uniform
policy at the Whitesburg hospital at the time of her deposition (May 23, 2017 – about ten
years after the Profitt incident), she testified, "We have been all over the board with this
. . . We've had it specific colors, we've been all white, we let them go back to select unit
specific. I honestly do not know what their current policy is." (Ct. Ex. D, Wright Dep. at
50-51.) When asked if she had any idea what the females were wearing in the ER on the
night of the Profitt incident or what color scrubs they would have been wearing that
night, she explicitly testified, "I do not." (Ct. Ex. D, Wright Dep. at 53.)
Thus, while English did testify that the nurse who transported Profitt had on
white scrubs, a jury could not possibly infer from this that Nurse Hurt or Parsons was
the nurse who moved Profitt.
The Court has reviewed the record for any and all evidence that points to Nurses
Hurt or Parsons as the nurse who moved Profitt. In its recent brief, U.S. Nursing
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summarizes in writing the evidence as to Parsons as follows: 1) "Parsons was the only
nurse working at the front desk when Jaworski presented to the emergency room," 2) "a
nurse in white scrubs came out with a wheelchair," and 3) "ARH-employed LPNs like
Parsons were provided scrubs, and that ARH-employed nurses worse white scrubs." (DE
383, Reply at 6.) In the same reply brief, U.S. Nursing summarizes is evidence as to
Nurse Hurt as follows: 1) "Profitt's testimony that the woman who transported him into
the emergency room stayed with him throughout his time" at the Whitesburg hospital
and "started all his procedures and treatment," and 2) "Hurt was the only nurse in
Profitt's medical records." (DE 383, Reply at 6.)
The Court has explained why each of these five points is either an inaccurate
portrayal of the evidence or insignificant to the identity of the nurse who moved Profitt.
The evidence on this issue was not "closely balanced." The only eyewitnesses who
recalled the nurse's identity identified Nurse Foote as the nurse who moved Profitt, and
they provided a reasoned explanation that supported that recollection. There is simply
no evidence from which the jury could fairly infer that Nurse Hurt or Parsons moved
Profitt. Thus, the Court's ruling precluding any such evidence did not affect U.S.
Nursing's substantial rights. Justice does not require a new trial, setting aside the
verdict, or otherwise disturbing the judgment entered in this case. Fed. R. Civ. P. 61.
Dated September 24, 2021

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