Summary

Alzheimer’s patient, 81, suffers a severe decline in her physical health after only three months in assisted-living facility. Jury awards $27 million, mostly punitive damages.

The Case

Case Name: Joan Boice, et al v. Emeritus Corporation
Court and Case Number: : Sacramento Superior Court/ 34-2009-00063714
Date of Jury Verdict: Friday, March 08, 2013
Date Action was Filed: Thursday, 12 November 2009
Type of Action: Elder Abuse, Wrongful Death, Highlighted Verdicts
Judge or Arbitrator(s): Hon. Judy Holzer Hersher
Plaintiffs:
Joan Boice, Eric Boice, Mark Boice, Nancee Boice (Joan and Myron’s adult children)
Defendants:
Emeritus Corporation
Type of Result: Jury Verdict

The Result

Gross Verdict: $27,088,943.81

Economic Damages:
None.

Non-Economic Damages:
Pain and suffering: $3,875,000

Wrongful death: $250,000
Punitive Damages:
$22,963,943.

Note: It was noted by plaintiffs’ counsel that the actual verdict amount of $27,088,943.81 was provided by the jurors as a message to the defendant company. Joan Boice was 81 years old when she died, and the jury is said to have wanted to commemorate her in the verdict figure.
Trial Time: 33 days
Jury Deliberation Time: 2 days for phase 1 – compensatory and special findings; 4 hours for punitive damages.
Jury Polls: 12/0 on all findings except damages, compensatory 10-2 on wrongful death; 11-1 on pain and suffering; 10-2 on punitive damages. The “no” votes all wanted to award more money.
Post Trial Motions & Post-Verdict Settlements: Pending

The Attorneys

Attorney for the Plantiff:
Clement & Associates by Lesley Ann Clement, Sacramento.
Attorney for the Defendant:
Lewis Brisbois by Bryan Reid, Rima Badiwiya, and Kim Wells.

The Experts

Plaintiff’s Medical Experts:
Kathryn Locatell, M.D., geriatrics and internal medicine, Placerville
Defendant’s Medical Experts:
John Fullerton, M.D., geriatrics and palliative care, San Rafael
Mary Ann Ransbury, R.N., wound care, San Bernardino
Richard Tindall, M.D., neurology, San Bernardino
Plaintiff’s Technical Experts:
Robert Johnson, MBA, economist (for punitive damages phase), Palo Alto
Defendant’s Technical Experts:
John Grant, regulatory expert (DSS licensing), Seal Beach
James Moore, MBA, assisted living facility expert, Fort Worth, TX

Facts and Background

Facts and Background:
Joan Boice and her husband Myron Boice, moved into Emeritus Assisted Living Facility in Auburn, CA, on September 12, 2008, from another assisted living facility. She walked into Emeritus with her walker. She left Emeritus on December 4, 2008 with multiple full-thickness pressure ulcers, contractures, and a 20-pound weight loss. Joan died on February 14, 2009.

(Myron Boice died shortly before complaint was filed.)

Plaintiff’s Contentions:
That Joan Boice had received excellent care at her prior assisted living facility, but was neglected at Emeritus because of a corporate scheme to understaff its facilities, while marketing to elders and their families that Emeritus was the leader in assisted living and dementia care, and that its staff was highly trained and provided its residents with an activities-focused program.

None of the staff had the state-mandated training or the training set forth in Emeritus’s own policies, nor did the staff meet the qualifications set forth in Emeritus’s own written job descriptions.

The staff did not have the time or the training to protect Joan Boice from health and safety hazards, including assisting her with ambulation in her walker or providing her with activities. She declined rapidly due to severe understaffing, that included multiple nights with no staff to oversee the care of 17 dementia residents in the Memory Care Unit where Joan Boice lived and only 2 staff members for nearly 80 elders across a three-story building.

There were few if any activities for the residents, and the staff was not trained nor had the time to assist residents with their activities of daily living, like eating, walking, and bathing.

That Emeritus violated state safety regulations and laws. That Emeritus violated their own policies and procedures. That Emeritus corporate officers, directors and managing agents, directed, authorized and ratified, the malicious, oppressive and fraudulent conduct that resulted in Joan Boice’s neglect and death. That Emeritus’s neglect was a substantial contributing factor in Joan Boice’s death. The pressure ulcers she developed were treated by unlicensed staff for nearly two months before any notice was given to the physician or the family.

Defendant’s Contentions:
That Emeritus acted at all times within the law and the standard of care. That care met state standards, but there were some documentation issues with the care. Joan Boice died as a result of a mixed dementia caused by strokes, coupled with her Alzheimer’s disease, that caused spontaneous pressure ulcers and no amount of care would have prevented her death or a negative outcome.

Injuries and Other Damages

Physical Injuries claimed by Plaintiff:
Joan Boice lost 20 pounds in 3 months, developed contractures, lost her ability to walk, and developed multiple full-thickness pressure ulcers and died two months after leaving Emeritus as a result of these injuries.

Additional Notes

Trial was scheduled to commence on October 22, 2012; Judge Judy Hersher heard Emeritus’s 29 motions in limine and plaintiffs’ one motion in limine and the Court and parties resolved the majority of legal issues, including jury instructions, before jury selection began on January 2, 2013. Emeritus filed five substitutions of attorney over the nearly four-year litigation. Emeritus announced its intent to appeal the verdict.

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