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Nursing Home Held Accountable For Mothers Death
Nursing home cases are both difficult and rewarding. They are difficult because they always represent a failure to care for someone’s wife, husband, father, or mother. They are rewarding when we are able to return some measure of dignity and justice to a victim of negligence or abuse.
This was particularly true of one of our most recent nursing home cases in which a not-so-elderly woman in poor health was brought to a nursing home for care. The nursing him was told that Lois was being brought there because she had a recent history of falling and her elderly husband was not confident that he could help her.
Instead of caring for her, Lois was largely left alone and within just 5 days of admission to the home, Lois was dead. You see, the home was quite happy to take the money from her family, but was unwilling do expend its resources to make sure she was safe. Despite being on notice from the very beginning that she had fallen down and was unsteady, the nursing home allowed her to fall down four times in just 5 days. The nursing home’s in-house doctor, tried to say she had died from heart problems. The coroner, however, performed an autopsy and determined that she had clearly died from head trauma due to falls at the nursing home.
Was Lois destined to live another 10 years? Probably not. But her children’s last memory of her was not holding her hand saying goodbye at her bedside, but of her bruised head laying coldly in the morgue and then fighting for some measure of justice in their mother’s name.
We were proud to have vindicated their mother’s memory and to have recovered some of the human dignity that had been taken from their mother by the nursing home.
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Who Doesn't Like Sesame Street
While I have spent most of my career representing the victims of personal injury and wrongful death, I also have served as the lead attorney in several class actions around the country. One of the most recent ones was a case against a giant insurance company and covered the States of New York and New Jersey. We had already, in 2009, settled a similar class action case against the same company in California for over six million dollars, and pursued related actions on the other side of the Country. The specific details of the case are not important and would not be terribly interesting to the average person, however, what was most rewarding about the New York and New Jersey class action case is a specific element of the class action settlement.
In every class action many class members do not claim their portion of the settlement funds. Sometimes they have moved away, or simply do not want to be bothered filling out the form that is required. Ordinarily, when a corporation settles a class action suit, they get to keep the unclaimed settlement money. It is a way for these companies to save money and look like they are paying more than they are actually paying to settle a case.
The New York and New Jersey cases settled in 2012 for a couple of million dollars. What is most notable in the case is that at about 9 p.m. on the third day of negotiation, on the 40th floor of 101 Park Avenue in New York, I had negotiated as part of the settlement that any unclaimed money not be returned to the corporation, but would be given to charity (and I think we picked great ones!)
As a result, Sesame Workshop (Sesame Street) and Legal Services of New Jersey (the low income free legal aid) shared more than half a million dollars of the unclaimed settlement funds. This money came to both charities at a time when the economy was at its worst and their donations had hit a low point. Click here to see the “thank you” letters! (As a former viewer myself, I loved getting a letter with Ernie and Bert on it). So, the next time someone says “Class actions only help the lawyers” tell them about Sesame Street, tell them about legal aid charity, and tell them to come to TheLawFirm.com.
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Maria Flores died at 2pm in the afternoon waiting to take a left turn to pick up kids from an elementary school. It was a very busy highway and she was stopped in the roadway waiting for a gap in the oncoming traffic. A school bus was waiting at the corner. A car travelling in the same direction did not notice she was stopped in the road and rear-ended her. Her car was pushed into an oncoming big rig and virtually exploded on impact. She was killed instantly. Debris flew everywhere, some even hitting the waiting school bus full of Kindergarteners (thankfully none of them were hurt).
Upon our investigation, we learned that the State had had a plan to put in a left turn lane to take left-turners (like Maria) out of the lane of travel. They planned this because the traffic volumes along the roadway were so high they were literally off the State’s charts which show them when a left-turn lane is needed.
We took almost 30 deposition in the case, and obtained thousands of pages of the State’s records and learned that the project to put in a left turn lane was originally priced at only $100,000, and that the project it was a part of, was not only designed, planned, and scheduled for construction, but was even fully funded. In other words, this was a project the State had money to do. But it never got done. Three times it was scheduled for construction, but it never got done… well, not until recently, when there was a ribbon cutting ceremony to open the left turn lane (put in because the State decided it was an emergency after they were sued).
Maria was a loving wife and mother of three kids. I remember taking the husband and the two oldest kids to the defense attorney’s law office for their deposition (where they are asked questions under oath). Even the Court reporter cried and so did I.
This was a tough case. Really tough. Any time you sue the government you have an uphill battle because the government invented the rules on when the government is liable. That’s right. The government actually wrote the rules on when the government will be held accountable. The government is not treated the same as you and I when it comes to fault. The government is immune from lawsuits unless you can navigate your way through a whole maze of rules and evidence to establish why the government should be held accountable.
The State of California had their top lawyers defending this case. They filed a motion early in the case to have the Judge dismiss the action altogether. We opposed the motion and won. The case continued. The State hired the best experts money could buy, to say that the intersection did not really need a left turn lane. I cross-examined the heck out of those experts using the State’s own documents I obtained in discovery.
The State offered just $150,000 to settle the case. By then, we had almost that much invested in costs (like expert witness fees, exhibits, demonstrations, court reporters, etc.)
The State gave us no choice but to take them to trial, before a jury of our community.
After many days of trial, and many witnesses, legal arguments, and battles in the Courtroom, it was left in the hands of the jury. After 2 ½ days of deliberations, they returned a record setting verdict that they can be proud of. They acknowledged the State’s lack of care for the lives in our community and they placed a high value on the life of a wife and mother – the woman who was the anchor for that family and who will be gone from them forever.
I bonded with that jury. I felt like we did something great together. (When it was all over, the jury foreperson asked if she could give me a hug… and of course I did!)
There was a local newspaper article that reported the verdict. I am proud of the second headline that reads “Jurors Praise Attorney’s Presentation”. Some natural talent, and a boatload of work and preparation resulted in the right result for the client, and our community.
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