Latest / Coopers' Code / From Hung Jury to $24M Victory - Part 1: A Tale of Two Elder Abuse Trials

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From Hung Jury to $24M Victory - Part 1: A Tale of Two Elder Abuse Trials · Coopers' Code

• 0:00
  This was at its heart an elder abuse case involving false
• 0:05
  neglect. Just lots of different care
• 0:08
  issues that painted a picture of a facility wide pattern of
• 0:11
  neglect and just failure to take needed steps to keep Teresa
• 0:14
  Donahue safe. Howdy, and welcome to the show.
• 0:20
  I'm very excited to have another one of our after Action reviews
• 0:23
  where we're going to do a deep dive into a recent case and an
• 0:27
  outstanding result. Today we get to sit down with
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  Carmen Quadani and Kelsey Craven, both from Stebner
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  Gertler and Quadani. They're going to talk about
• 0:39
  their trial, successful trial in the Donahue versus MBK senior
• 0:44
  living case. And it's not just one trial,
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  it's two trials because there was a hung jury along the way.
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  And without further ado, I'm going to ask to just turn this
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  over to one of the two of you to tell us a little bit about what
• 0:58
  happened, the underlying incident that gave rise to this.
• 1:03
  So the essence of the case surrounds decedent Teresa
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  Donahue, who was in her 80s when she was admitted to Muirwood's
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  Memory Care, which is a memory care facility in Petaluma, CA.
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  And she was basically admitted because she had dementia and her
• 1:24
  daughter thought that this facility would be a place where
• 1:28
  her mom could stay safe and where she could remain active
• 1:31
  and have activities and such. And so she was admitted a few
• 1:36
  months after the pandemic, the COVID pandemic started.
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  And throughout her admission, she suffered at least 4 falls.
• 1:44
  And on the 4th fall, on March 20th of 2021, she fell and
• 1:50
  suffered a hip fracture, which ultimately led to a severe
• 1:54
  decline and her passing about a year later.
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  I actually did the intake for this case with the daughter,
• 2:02
  Kelly Tennier, about a few weeks after that final fall when her
• 2:07
  mother was still alive. And we filed the complaint soon
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  after. And so we had the opportunity to
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  get to know Teresa and her family before she passed, which
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  I think made a big difference in just in terms of of knowing who
• 2:20
  she was as a person. You know, eventually she did
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  unfortunately pass in April of 2022.
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  And at that point, we had to file an amended complaint adding
• 2:33
  a cause of action for wrongful death and then had her two
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  children as the plaintiffs, Kelly Tennier and Raymond
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  Donahue. And so this was, at its heart,
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  an elder abuse case involving false neglect.
• 2:49
  It also, you know, included Miss Donahue getting scabies for an
• 2:52
  extended period of time. Just lots of different care
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  issues that painted a picture of a facility wide pattern of
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  neglect and just failure to take needed steps to keep Teresa
• 3:03
  Donahue safe. While we're here to talk about
• 3:06
  the work up of that case and and the ultimately successful
• 3:10
  outcome of that case, can you help us understand a little bit
• 3:14
  about how elder abuse cases are different than your everyday
• 3:19
  personal injury case? Are there additional hurdles,
• 3:22
  additional challenges that you need to be aware of to do these
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  successfully? Elder abuses cases are different
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  than a standard Pi case because you're not just proving
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  negligence. We like to say it's kind of like
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  if you're, if you're proving an injury case plus you're proving
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  like a product defect case. In order to get elder abuse in
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  California, you have to show not only that the incident happened
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  and it caused the injury or caused the death, but also you
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  have to show that the managing agents, the people who are
• 3:54
  really in control and in charge of the facility, made decisions
• 4:00
  that were reckless or malice, malicious or oppressive, but
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  usually reckless in terms of the way they operated.
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  That they knew of risks that could come from not doing
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  certain things, but they disregarded those risks, often
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  for a profit motive. So the most common ways that we
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  prove that and what we did in this case is showing that there
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  wasn't enough staff, that they knew they needed more staff, but
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  they chose not to take steps to get more staff and continue to
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  admit new residents that the staff wasn't trained and that
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  the management is not supported and not adequate to oversee the
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  provision of care. And to give that back to you to
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  see if to see if I understand it correctly, it sounds like the
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  standard is is a higher, higher standard, higher burden.
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  It is so in order to get elder abuse you have to get clear and
• 4:55
  convincing evidence so you know it's the next thing to beyond a
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  reasonable doubt really. I know this is a little
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  tangential, but relevant to the the practice area.
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  Am I correct that that there have been some efforts at the
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  legislative level to correct that standard, given our aging
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  population and given the unfortunate commonality of these
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  kinds of events? In order to prove financial
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  elder abuse, the burden is actually lower than it is for
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  proving physical abuse. And so our firm, our principal
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  Catherine Stubner is recently was the CAOC president.
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  She and us collectively have made a big push and a big effort
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  along with our Co counsel Kirsten Fish to try to change
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  the standard of proof to lower it to a simple preponderance.
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  We last year during the legislative session were able to
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  get it through the ledge, but the governor vetoed the change.
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  We then have worked with some people in Sacramento to have a
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  new modified bill on the table, which would say that if you
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  could show basically falsification or destruction of
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  evidence in an elder abuse case, then at least the judge has the
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  discretion to lower the standard of proof.
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  And that's in the works right now.
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  We'll see, but we're really hoping to get it through.
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  With that standard as a backdrop, can you help us
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  understand how you approached the discovery, in this case
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  discovery depositions work up to get it ready for meeting that
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  that higher burden? So I think it's interesting to
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  and important to remember that we filed the case less than a
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  month after that 4th fall happened, so in April of 21.
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  And at that time, Teresa Donahue was still alive.
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  We filed a motion for preference.
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  We do that in a lot of our cases.
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  But once the motion for preference was granted in June
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  of 21, the case was set for trial in the fall.
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  And so we were all just kind of rushing to do everything we
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  could to get it prepped. It's four months is not a long
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  time to get a case ready for trial, regardless of the
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  standard approved. But the the bulk of the
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  depositions and the bulk of the discovery was done during that
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  window. And that was also while we were
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  all in the middle of our pandemic kind of locked down.
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  So everybody was doing everything from their home
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  offices or bedrooms. But what was interesting is sort
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  of in that hasty process, we got the basic information where we
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  felt like we were ready to try it, but a lot of information
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  came out during the trial which hadn't been uncovered in
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  discovery. And so it's kind of counter to
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  the argument like you never ask a question you don't know the
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  answer to. There were a lot of new pieces
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  of information that we learned about after.
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  And so we ended up having to, in the course of the trial, take
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  probably more risks than we otherwise would have to deal
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  with it. I want to unpack that a little
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  bit. One question I I didn't ask
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  venue where? Where was this located?
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  This case was in Sonoma County. If my memory serves correctly,
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  your firm has had a number of significant outcomes in Sonoma.
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  Are there more homes up in that area?
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  Is that why there are more cases up in that area?
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  There are quite a few long term care facilities in that area.
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  I mean, generally the number of long term care facilities in an
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  area in California directly correlates to how cheap the real
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  estate is and how much of the population is elderly.
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  So there's a lot of elderly people in sort of the North Bay
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  and the real estate is cheaper. It's less concentrated, for
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  example, in San Francisco, where real estate is more expensive.
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  With the number of cases that you have, is MBK Senior living a
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  repeat offender? Someone where you would have had
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  some background information to help you as you're going through
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  this process. So we have had in the past other
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  cases against MBK senior living. MBK isn't our most common
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  defendant, but we we had experience with them in the
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  past, but we never got to the level of course that we did in
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  this case. Understood, going back into the
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  pandemic phase and learning more things during trial than one
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  normally does. How did that come about?
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  There's so many examples. I'm having a hard time going up
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  with the first one. But you know, I, I think a, a
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  big one that we learned during the first trial was that the
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  administrator, the, the synonymous term is executive
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  director of the facility. Her name was Jamie.
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  We did not know this before, but we learned that during this this
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  time where Teresa was falling a lot, you know, when she suffered
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  the hip fracture, all of that. The administrator was actually
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  sick herself with COVID and was not physically present at the
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  facility. It was for quite a long time.
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  It was for a period of months and she was really sick
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  actually. But the corporation, instead of
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  sending in her supervisor or someone to fill in for her, they
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  just had her working remotely basically.
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  And so, you know, the the captain of the ship was not
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  there during this vital period of time when Teresa was having
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  all of these falls and nothing was being done.
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  That sounds to me like it would be a helpful fact.
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  I'm going to ruin the the chronology of the plot a little
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  bit, but what happened with the first trial?
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  With the first trial, we we're in trial for five weeks.
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  We had the jury deliberate, I want to say for 2 1/2 days.
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  Right after the case went to the jury, our judge for the trial
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  went to take his kid to college. So we got a substitute judge and
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  then the jury started sending in notes and it the notes painted
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  an increasingly bleak picture over that time.
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  And then we learned that the jury was hung, that they
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  couldn't get to 9 on the first question on the verdict form,
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  which is the negligence question.
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  And so the judge dismissed the jurors, and we walked out.
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  And I was making presumptions. I'll ask a question.
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  Was this tried remotely or were you in person?
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  We were in person for both of the trials and, and actually
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  during the first one, someone, one of the jurors contracted
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  COVID. And so that was also another
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  hurdle of I, I believe you were on a, a recess for a couple days
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  trying to figure out how to logistically go about this with
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  someone testing positive. I, I also got COVID during that
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  time, so it, that was a, a big hurdle there and just in terms
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  of logistics, but yeah, it was, there was a lot that we learned
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  from the first trial, I would say.
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  The reason I asked about whether you were in person was once the
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  jury came back and were was hung, were you able to in
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  essence do a five week focus group to figure out how to retry
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  the case in terms of what some of the jurors had to say about
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  things? Yes, after the five weeks, the
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  jurors really shot out of the parking lot.
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  They were not hanging around. There was one that I was able to
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  talk to that day, but everybody else was gone by the time we
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  were dismissed. But then we were able to track
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  down almost everybody. I'd say probably 8 out of the 12
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  or there were two alternates. So I think I talked to 8 or 9
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  people, but we did get a lot of information.
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  We also found some really interesting things about our
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  jurors. One of the surprising things we
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  found out was that the foreperson was a gentleman who
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  had some prior criminal history and probably wouldn't have been
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  allowed to serve on the jury. But we also found he was
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  somebody who had gone through litigation, you know, in his own
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  personal life or whatever, and he was very against us and very
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  against our case. One of the.
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  So we use negligence per SE because a lot of what we're
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  talking about in elder abuse cases has to do with the
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  regulations and specific regulations that apply to long
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  term care. So the defendants invoke trials
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  were able to get the judge to give an instruction that the
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  negligence was excused because of an emergency, the COVID
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  pandemic. So, you know, we were a little
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  hesitant initially to go into the child talking so much about
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  COVID. And then our hand was really
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  forced. And it became clear during the
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  trial that, you know, there was this big, huge COVID outbreak at
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  our facility while Teresa Donahue was having all these
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  problems. And so we ended up talking about
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  COVID a lot. But to go back to your first
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  question, what we learned after the first trial in part by
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  talking to the jurors was the defense did a good job in the
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  first trial of painting the picture that the facilities and
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  the management's hands were tied, that this was an
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  emergency. And so when we got ready for the
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  second trial, we really addressed that head on and
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  really focus on the options and the choices that they had at
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  every turn and the fact that they chose not to do the right
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  thing over and over. And I think that was ultimately
• 15:22
  effective. If you're enjoying what we're
• 15:23
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  show. I have an interview suggestion.
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  e-mail us at podcast at Cooper's dot law going to the process
• 15:39
  after a hung jury. Were you allowed to reopen
• 15:44
  Discovery? Were there were were were there
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  more depositions or did you have to try it with the same hand
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  that you held before? We took a deposition on the
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  defendant's financial condition, sort of in the event we were to
• 15:57
  get a punitive damages finding, we would have a baseline set of
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  information which really did prove essential, crucial when we
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  did get that punitive damages finding to have that testimony
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  later on. But I think beyond that,
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  actually there was one other deposition, I think someone from
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  the State of California licensing.
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  Roughly how long after the first trial was the second trial set?
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  We were set to start on March 1st of 24 and we got the hung
• 16:32
  jury. Is it September?
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  September of the previous year, so about six months, OK.
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  And one question I didn't ask earlier, much like medical
• 16:44
  malpractice, there seems to be a very narrow band of people who
• 16:48
  specialize in this area on the prosecution side, firms, firms
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  like yours who do it really well.
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  Is that also true in terms of the defense firms?
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  Are you, do you see the same people over and over again?
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  I would say for the most part, yes.
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  And you know, that's a good and a bad thing.
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  It's good because you know the other side knows what they're
• 17:08
  doing. And when you see someone and
• 17:10
  experience show up, it's not necessarily a good thing 'cause
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  it's often means you just have to have a lot more unnecessary
• 17:17
  fights. But the defense in this case was
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  someone that we're really familiar with.
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  I mean it's one of the pre eminent defense firms in
• 17:26
  California. At that level, is it a collegial
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  bar or is it still pretty bare knuckled?
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  I'd say largely collegial, but it's very adversarial.
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  You know, we could talk big picture on a good level and
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  there were lots of things we were able to stipulate too at
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  trial, things like that, but certainly not that comfortable
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  of a relationship. Understood.
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  I recognize that you had a between the preference and
• 17:53
  COVID, you had very challenging circumstances in terms of
• 17:59
  pulling together the information before the first trial.
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  Are there things that you wish you would have the opportunity
• 18:06
  to do or to do differently in order for that initial work up?
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  A lot of the things that I wish have could have been done
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  differently were out of our control.
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  The only thing is there were certain.
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  So in our case, one of the one of the issues is our our focus
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  is trying to prove there wasn't enough staff at this facility
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  and we jumped on filing our complaint and we jumped on
• 18:33
  serving our written discovery and document request.
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  But by the time that we got responses, the staffing
• 18:41
  documents had been destroyed. They said it was in the regular
• 18:45
  course of business. I'd say like looking backwards,
• 18:51
  had we known where we were going to end up, we would have filed
• 18:55
  motions to compel and we just didn't have time in that
• 18:59
  preference window to have our motions even heard.
• 19:03
  But you know, I think the destruction of documents would
• 19:06
  have given the judge more power to do more with that.
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  If we'd been able to file motions and kind of go all the
• 19:13
  way through, we didn't have that chance.
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  But ultimately we did get, we did get the jury instructions on
• 19:20
  destruction of documents. And, you know, I think that they
• 19:24
  really helped us in our case. Also in terms of the what I
• 19:30
  would describe as the setup for a very successful financial
• 19:33
  outcome for your clients, did you serve up any sort of a
• 19:36
  formal offer compromise A998? We did.
• 19:40
  So we served A998499-D about a year and a half before the first
• 19:53
  trial and the defendants had served A998 for 85,000, which
• 20:00
  would have been about a month before we were originally
• 20:03
  scheduled to go to trial, so in September of 21, and we beat
• 20:09
  that. Yeah.
• 20:13
  Did you win the second trial? I'm very pleased to report we
• 20:16
  did not get a second hung jury. Yes, we, it was a moment I'll
• 20:22
  never forget. I, I don't have the verdict form
• 20:24
  in front of me right now, but I just off the top of my head, we,
• 20:30
  we did win on elder abuse and the pain and suffering award was
• 20:36
  three and a half million as well as a few 100,000 in wrongful
• 20:41
  death damages. Then for the punitive damages
• 20:45
  phase, that was a really, really quick turn around.
• 20:48
  I think Carmen was able to question the CEO of the company
• 20:54
  for less than two hours and then the jury deliberate for about
• 20:58
  two hours and came back with a $17 million total punitive
• 21:02
  damages award. Wow.
• 21:05
  Yeah, yeah, almost. I remember our our client was
• 21:09
  standing in between US and I I almost had to hold her up
• 21:13
  because her knees were buckling. She just couldn't believe what
• 21:16
  had happened. When you get into the overlap of
• 21:22
  insurance and the corporate assets on a punitive damage case
• 21:27
  with the 998 having been served, making some some presumptions,
• 21:32
  was there insurance in play in this case?
• 21:35
  There was $1,000,000 policy. So with the $1,000,000 policy
• 21:40
  and A998 for less than the policy, I think you said 990 if
• 21:45
  I recall correctly. Correct.
• 21:47
  How did that impact the ultimate collectability in the case?
• 21:51
  Zooming way back in time to when, before we knew this case
• 21:55
  was going to try, this was a hard case.
• 21:59
  This was a fall case with a lot of time between the fall and the
• 22:03
  ultimate death. So in the elder abuse world,
• 22:08
  fall cases are probably the hardest cases.
• 22:10
  We were open to discussing settlement up until a certain
• 22:14
  point. But you know, within the policy,
• 22:17
  our client was very interested in getting justice for her mom.
• 22:22
  So you know what, what number that would have been.
• 22:25
  I'm, I'm not exactly sure, but in terms of ultimately now
• 22:31
  collectability, the, the company, the parent company of
• 22:36
  MBK Senior Living has tremendous amount of assets.
• 22:40
  So the, I don't think they're going to go bankrupt.
• 22:44
  The case is still on appeal. So the money's in an account
• 22:49
  collecting interest right now. Thank you for listening and
• 22:52
  please join us next week as we continue this conversation.
• 22:55
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• 22:58
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  there. Happy hunting.