evidence that we put in showed that he was employed hired managed by all three different because their corporate documents that shared that he was managed by care one coverage and yet his signature on the in the early fart around pages two hundred and fifty and she said that these individuals were all employed by these same defend in fact she says and pages two hundred twenty five to two hundred twenty six and two hundred thirty three as a business office manager that they were employed by and managed by defendants not only did peggy singletary say it but one of the other administrators who testified pamela street who was an administrator said that she had been hired by these defendants and mistreats sa mchale there was testimony at trial that he and in the evidence that he one of the people who came down he was the according to the documents with your own evidence and testimony he was the regional office manager for care want and in this case care one had the entire that this facility was managed one hundred percent to the business office manager pretty singletary i care what they manage everything they had handled hiring firing and budgets there were there certainly can be and what we would say is when corporations hire in manager those corporations have liability when the manager takes action they responsible for the person they put in place to manage the corporation and when they put chair virginia and so i in the record you can find his information regarding who employed him on pages j to twenty five to tw and there are direct documents that ben mcgovern sign as the care one care virginia employee j a thirteen forty seven to thirteen forty eight thirteen forty one two thirteen forty two those are for the nurse one more and for ben mcgovern the business office manager peggy singletary made these statements and joined appendix two hundred eighteen to two hundred one thousand two hundred thirty three to two hundred thirty five two hundred thirty nine to two hundred  these companies hire these individuals then manage them and pointing to the agreements they who are in charge them under north carolina law there is a public policy that there are safety laws in place then mcgovern was put in charge of this nursing home and he was allowed to cut over a million have talers in staffing a line he did that in the face of warnings that understaffing would have back patient safety he knowingly violated federal and state laws having been more and that in doing so it would mean they could not keep the patients say and these are patients who relied on breathing machines to live they had to have their air he created a real risk of injury to the patient and he did that telling his staff that he was cutting costs no matter what he was the new sheriff in town the testimony was that the current minister darryl taylor left because karen wanted him to cut costs and staff and he wasn't willing to sacrifice ben mcgovern made no secret of the fact when he was brought in that he intended to cut costs and cut staff no matter what no matter what the consequences and he did that and when he did that and under north carolina law we believe the trial court was in error when it was unable to view the direct evidence and instead look for things such as who owned the corporation in corporate minutes instead it looked for evidence of something higher than a manager and in the north carolina law the cases are very clear that the person in charge the person who is titled manager the person who can make decisions on hiring and firing and can cut a million  was testimony that it's not just benjamin as the administrator but directly underneath him additional layers of managers the director of nursing and the director of respiratory therapy they also supervise individuals and manage the nurses and the respiratory therapists and these individuals also had knowledge that the facility was understaffed they literally did not have a registered nurse working in a unit that had patients on ventilators and they knew it they set the budget so they would not have these that showed us and after this no one made any changes to put enough staff to meet federal and state law and there were warnings that people were in danger that people weren't on and in response to that the person in charge says i'm  e i'm going to cut costs no matter what and that is the one thing you cannot have in a health care facility there's no question that you cannot cut costs no matter what when you've been warned that patients are in danger baird there is evidence in the testimony including the last person you care for him that he was not able to check his alarm he didn't even check to make sure the man's breathing alarm was on and he needed a ventilator on he stated and there's testimony that he did not have time because he was so busy that night to get around to checking it so there was a man in the facility and no one said his alarm when he was banging no nurse responded no nurses sas temp so he was and then after that after she'd been that way for over an hour then someone came in to change your tubes and in doing so they found that no one had set the bedside up prior to their arrival so all the necessary equipment wasn't there so he had to go running around trying to find extra tubes he couldn't find a nurse to get the equipment the staff in the room couldn't lady because there weren't enough people there to make sure they quit was there and then to find it when they needed it so the testimony is when mrs jones was in danger and needs help she spent fifteen minutes with hot air because they were running around trying to find with they needed well there's no want to know who can breathe out on you die and that's what happened to all of these three people they suffocated miss key throughout and she died the night and the state came in and said on kind exact night they didn't have a registered nurse and they were understaffed and all the people there that night said we asked for center and there's much evidence that they asked for centers they asked for higher requirements for this because people cannot go fifteen minutes without air and they knew this and so they was conscious understaffing and cutting costs when they knew that there had to be enough patient minimums to keep these people's people safe enunciated and well settled as the legal mandate from the legislature the punitive damages may not be awarded against one as a result of the acts or emissions of another instead punitive damages may be awarded judge tyson's the scenting opinion in the miller case is it is particularly instructive it is in in the briefs and judge tyson goes through an analysis on it in the context of limited liability been cited a limited liability company is is managed its officers and directors are managers they are there are members managed l l c a nursing home administrator can be a manager i don't understand that so was he a manager under the meaning of the statute was then the governor i would contend is not a manager under the meaning of the statute as as judge tyson announced it in the military that he is not a member or a manager came in to investigate and part of part of the decision i believe when mr mcgovern was terminated from the company he was not mr mcgovern was not the administrator in the months preceding and surrounding be so given what has occurred will just pointed out to you regarding this code of conduct document signed by mr mcgovern on behalf of all three companies is that enough to tag him as a manager for all three entities for or ginia l l c nor does do i believe that that shows the the type of participation or condemnation of corporate or of these corporations or that scuse me these companies were guarding the decisions that would have had to have been made with a certain level of mens rea in order to lead to liability of the peanut damage statute and right sir under the punitive damages statute  the aggravating factors set forth in the statute itself stablished the standard for the aggravating factor and for instance fraud will suffice constructor fraud will not unless an element of intent is pre conscious and intentional indifference and and and and what we would submit is that where it was conscious and intentional disregard and indifference and what we would submit is that  judge boyle sat through the trial judge world heard all of the evidence and what judge were found wanting was any suggestion any testimony that any of these management level individuals who could upon whose shoulders blame could be laid was was not introduced into evidence in terms of their men's room in fact judge or refers to them as the unidentified and unnamed officers directors or managers one who was brought forward to testify no one who could speak to the individuals who made the actual decisions and their state of mind then mcgovern came in and said on the new sheriff in town and mcgovern cut costs for things such as the quality of the food according to gwendolyn moore he made comments that offended some of the staff were guarding personal issues and the government did not make a decision to cut staff below the minimum levels what the problem is and in judge what points the sound in his order he says that goes to liability to negligence but there was simply no evidence that an individual who could be said to participate or condone on behalf of the l l c or any of the l c sat down and said we are going to understaffed this unit i am going to do this and i'm going to do it with the knowledge that it will hurt patients there was simply no evidence of that and i would point out in my last few minutes that it is critical that the plan itself or to obtain punitive damages against the company turned entirely on proving that the company's officers directors or managers acted with the requisite intent and yet they chose to present no such evidence at all they did not to oppose any thirty six witnesses and also presumably for their own tactical reasons chose not to call any witnesses a trial who were officers directors or the managers or members of the limited liability companies in this order judge boyle notes the plaintiff could not even name or identify any officer director or manager of the limited liability companies upon whose shoulders fact that page six and seven of his order judge oil refer to these individuals as these unnamed and unidentified officers directors or managers the plan is likewise did not introduce any documentary up and such as meeting minute policies internal memoranda or any other type of evidence from which a jury could conclude that the defendants for to subpoena it in or condone the aggravating conduct or that they did so with intentional or malicious purpose it is not just that they damages against the company and there's certainly nothing anomalous about his conclusion your honour's punitive damages or awards are rare in north carolina and even rarer in medical malpractise cases in fact there is only one reported north carolina medical malpractise case in which a jury verdict awarding punitive damages was ever up hell that is the champix case and in that case and this is important they were overboard it against an actual specifically tortfeasor a nurse who knowingly honshu slee and deliberately used an unlabeled syringe containing an unknown substance knowing that to do so would expose the plaintiff to harm as judge will correctly concluded there was nothing like that here the players did not even identify any purported company tortfeasor let alone present any evidence that any company tortfeasor actually committed aggravating misconduct with the state of mind that north carolina law requires in closing judge boyle correctly identified and recited the law judge will correctly applied the law to the facts and trial record here and judge quote correctly concluded that the plaintiff's evidence directly from the testimony and that's the most succinct way to address that document forty four your honor referring to page forty four document forty four page so it is our brief these are the questions i asked to the business office manager on the stand when you were to blue ridge did you work in the administration of care want yes did you work in the administration care for genya yes what was care ones involvement in the nursing home they owned and operated the facility how much control to care one exercise of the finances of lyric one hundred percent do they set the budgets there yes then the business office manager went through every single person by name in minister terrell taylor minist brought no fact witnesses did or to controvert this evidence and no witnesses on standard of care so all of the evidence all of the former employees was completely uncontroverted there was nothing put into evidence in dispute so all of this testimony is undisputed from the business office manager from one of the former administrators they all explain this and she went through each person individually and explained that they worked for these companies and so for example they said their paychecks came from care one that's on page six of the brief one to one more set out and on pages thirteen forty through thirteen forty nine of the joint appendix and thirteen seventy eight through thirteen seventy nine you will see that there are documents from don mchale the karajan yeah and it says his title regional manager letting the state know that he has hired the director of respiratory therapy genzyme had multiple conversations with them and complained around one of the complaints you made that was her trial was that ben mcgovern threatened to withhold care for his mother if he didn't agree to move her to another room he said he wouldn't if her alarm in your policy and if you have acted to leave a place understaffed when you know that violates federal and state law and you don't have the people to care for people who have to live on breathing machines you response when they are harmed after you have been war your honor on our cross appeal we have raised the issue of elizabeth jones's the claim to regarding elizabeth jones and we think that it is important because it also big differences in the mechanics of injury with each person and a close examination of the state of the the the deceit and when they came to the hospital the facilities he's me but also that's part of the the problem and that's what he was the nursing home administrator but there's no there was no evidence and mcgovern came in and said i'm going to purposely understand and i'm going to do so knowing that will harm patient care in the important part service or what happened with elizabeth jones is that she she at her at her family's request she came back to blue ridge even the blue ridge had originally said this is probably not we'd like to stay at the long term care facility called she comes in with what's known as and was qualified as an expert claimed under oath and we would we would point to the trial testimony by ms dotson in which she said all the necessary people attending to ms jones were present in that  everyone there met the standard of care what happened was that joining the changing of her tubes there were there were multiple tubes in the room the cheering the changing of the tubes it was determined that possibly she could use or should have a longer to able was a breach of the standard here you what's what's wrong with that when the jury credit that opinion the jury well the jury could could credit that opinion of saying that that prior to ms jones arriving in the room talking about here yes or we are talking about that but what we're saying is that is is that if we look at ms dotson and we look at her testimony and we look at everything she said she says i performed within the standard of care she she can offer a straight comment that not having this two may have breached the standard of care but she says that the providers that are in the room the ones who are delivering care to her met the standard of care and that's what we don't look at this in isolation we look at  we further suggest is that nowhere is it suggested that a and in an inadequate number of people in the room had anything to do with it and so we would we would close by saying we believe the elizabeth jones focus on on