The verdict has forced corporations that operate skilled nursing facilities to pay attention to the minimum nurse staffing requirements necessary to ensure the health and safety of the residents.

Janssen Malloy LLP partners W. Timothy Needham and Michael J. Crowley spent seven months in trial on Lavender vs. Skilled Healthcare LLC in 2010.   Both Mr. Needham and Mr. Crowley have served on the Board of Governors of the Consumer Attorneys of California, and Patrik Griego currently serves on that organization’s Board of Governors.

The Consumer Attorneys of California champions the rights of injured people, safety and responsibility, and the right to trial by jury.

W. Timothy Needham is on the Board of Directors at Redwood Capital Bank in Eureka, and for many years was on the Board of Directors at KEET Public Television.   Mike Morrison is on the Board of Directors of Legal Services of Northern California, which provides legal representation to community members of limited income.  Dennis Reinholtsen has served for many years on the Cutten School District Board.   Michael J. Crowley is a captain and firefighter with the Kneeland Volunteer Fire Department.  He also served on the Board of Governors of Consumer Attorneys of California from 2003 through 2008.  Patrik Griego currently serves on the Board of Governors of Consumer Attorneys of California, and is the Treasurer of the Humboldt County Bar Association.  Our newest partner at Janssen Malloy LLP, Amelia Burroughs, is the Secretary of the Humboldt County Bar Association.

All of the partners and lawyers at Janssen Malloy LLP provide pro bono legal representation through the Legal Services of Northern California, staffing their civil law clinic on Third Street in Eureka.   All the lawyers at Janssen Malloy LLP believe that service to their community makes them better lawyers and citizens.

For those of you in Humboldt, Mendocino and Del Norte Counties who own family businesses, take heart.  A new study finds that by dealing with these family issues, a family business may have a significant competitive advantage over a non-family business.

In an article in Trusts & Estates (April 2011), under Family Businesses, entitled “Is Blood Thicker Than Water?”, the author reports that a family business’ special competitive weapon is its family culture.  The family culture can open communication, streamline decision making and create an environment with strong standards and values.

In this article, the author, David Thayne Leibell, a partner in the Stamford, Connecticut and New York offices of Wiggin & Dana, LLP, writes that stewards in family businesses are often motivated to serve organizational interests and as a result receive intrinsic satisfaction when the businesses  advance and succeed. Mr. Leibell cites a recent study published in the November 2010 issue of Entrepreneurship: Theory and Practice (Volume 34, Issue 6, pages 1,093-1116), “Is Blood Thicker Than Water?, A Study Of Stewardship Perception in Family Businesses”, by James H. Davis, Mather R. Allen and H. Davis Hayes.  In applying the concept of “stewardship” which emphasis that leaders should serve a greater good, rather than themselves, the study finds that in the case of family businesses, the greater good is the collective good of the family and the business. (Trust and Estates, April 2011, Family Businesses “Is Blood Thicker Than Water?”, page 12-14.)

So for those of you in family businesses, be it in Eureka, Arcata, Fortuna or other cities of Northern California, while you are considering which family member or members will ultimately own and manage the business, or how to provide for family members who may not be active in the business, take a moment, and recognize that being in a family business may give you an advantage: family owners and family employees are usually more willing than non-family owners and employees to work harder for the business because it is good for the family.

Humboldt County employers know that having an written sexual harassment policy is a critical practice.  The United States Court of Appeals for the Ninth Circuit recently released an opinion that reads like a cautionary tale about excellently-written sexual harassment policies that don’t get enforced.  (See EEOC v. Prospect Airport Services, Inc., 2010 DJDAR 14107, Sept. 3, 2010.)  The employer had a written sexual harassment policy, signed by employees, that encouraged employees to report sexual harassment to their immediate supervisor and promised that the employer would “investigate each complaint in a prompt and proper fashion.”  In this particular instance, a male employee reported sexual harassment by a female employee to three different supervisors in the chain, saying that he just wanted the harassment to stop.  The last  supervisor to receive the complaint responded that he didn’t want to get involved in a personal matter, and spoke to the offending employee once about her behavior.  After approximately five month of harassment, even subsequent to the supervisor counseling the offending employee, the employer terminated the male employee, basically for his bad attitude.  His complaint against the employer has now been litigated before a United States District Court of Appeal—an expensive proposition for any employer.

In short, employers must enforce their sexual harassment policies, or they face credible complaints of harassment.

Of course who’s going to fight with a major insurance carrier over one penny?  No one.

The purpose of a class action is to allow a large group of people with small claims to hold an entity accountable when it would otherwise be impossible for a single individual to do so.   As our federal court recently noted, “The most compelling rationale for finding superiority in a class action is the existence of a negative value suit.  A negative value suit is one in which the costs of enforcement in an individual action would exceed any individual recovery.”  Pfaff v. Whole Foods Market Group, Inc. (2010) WL 3834240.

In the most recent class action that we handled each of the plaintiffs will receive an average of $1,000 apiece.  There is simply no way that any one individual could have prosecuted an action for four years, and invested the time and money that was necessary to pursue that claim, if all they would have received is $1,000.  As our California Supreme Court has indicated, “Courts long have acknowledged the importance of class actions as the means to prevent a failure of justice in our judicial system…  By establishing a technique whereby the claims of many individuals can be resolved at the same time, the class suit both eliminates the possibility of repetitious litigation and provides small claimants with a method of obtaining redress…” Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 339, 340.

Historically, claims of large numbers of absent class members have presented difficulties because it has been difficult for the parties to have direct contact with their attorneys.  However, by use of the internet it is now possible for large numbers of the class to keep in contact with their attorneys, both to provide assistance and to allow the attorneys to keep the class members up to date regarding the status of the case.   Now, in each of the cases in which The Janssen Law Firm is involved, we set up an internet site so that we can share information with the class members and so that, in turn, they can share information with us.  The assistance of class members in cases in class actions cannot be overemphasized.   It is your case and you have the right to updated regarding its status.

Drange noted that patients like Diana Medal, a class member and resident in the Granada Healthcare Facility in Eureka, went through a “living hell.”  Chronic nursing understaffing at the facility meant call lights weren’t answered, bed pans were not provided and incontinent patients were left in their own waste.   “It wasn’t that nursing staff didn’t care,” Medal said, “it’s that they didn’t have time. ”

Former CNA Vali McGrath couldn’t take the chronic understaffing anymore and advised her supervisor that if they didn’t give her another staff CNA on that shift she would have to walk out.

Cindy Cool, who’s father Jack Sterns was an Alzheimer’s patient at Eureka Healthcare and Rehabilitation stated that when visiting him she would find his sweat pants soiled and urine dripping down into his shoes, and she saw other patients walking around with their catheters dragging on the ground leaving a trail of urine behind them.  The staff at Eureka Healthcare and Rehabilitation didn’t even know that her father had dentures when she asked when the last time they had been cleaned.  Ms. Cool echoed that the staff really did care for the patients but were so short handed they simply couldn’t care for everyone.

The class action case was built around California Health and Safety Code Section 1430 (b), which allowed individuals to sue over violations of patients rights such as understaffing.   Even though the statute allowed for a maximum amount of damages of only $500 per violation, once the 1.3 million violations were multiplied by the number of patient days, the jury did the arithmetic and rendered the huge verdict.

Janssen Law Firm lead trial counsel Timothy Needham and Michael Crowley noted that the defendants fought tooth and nail on every issue in the case.  The team of plaintiffs’ trial counsel logged nearly 29,000 hours of lawyer time on the case, spent more than $1.7 million on case costs, survived 129 law and motion matters, 14 writs and two appeals.  The six and a half month long trial was the tip of the iceberg of the amount of underlying time that went into the case.

All three parts of Mr. Drange’s coverage of the Skilled Healthcare matter can be found at the Times-Standard website – by using the following links:

1. ‘I went through hell’ – Patients, nurses share their stories in wake of lawsuit.

2.  Fighting ‘tooth and nail’ – The agreement that kept a company alive.

3. ‘Business as usual’ – Injunction looming for Humboldt County facilities in lawsuit.

Ryan Burns of the North Coast Journal writes:

“Even those who were closely watching the class action lawsuit against Skilled Healthcare Group, one of the nation’s largest nursing home chains, did a double-take in July when, after a trial that stretched for more than 100 days, a Humboldt County jury rendered its verdict. What was shocking wasn’t the verdict itself — the jury found that between 2003 and 2009 Skilled Healthcare criminally under-staffed 22 of its senior housing facilities in California, including five in the county — but rather the eye-popping size of the damages. It went for max, awarding nearly $619 million for health code violations and another $58 million for false advertising. It was the largest jury award in the U.S. this year, and it immediately sent Skilled Healthcare’s stock into a nosedive; shares fell 76 percent in a single day, to just $1.52.

Market analysts speculated that the verdict might force Skilled Healthcare into bankruptcy, an outcome that wouldn’t help the plaintiffs. These were the victims at the heart of the case, a class of some 32,000 patients (or their surviving family members). At issue was whether society can trust nursing homes to care for our loved ones, and the matter obviously struck a chord with the jury. After the trial, jury foreman Bob Hart told the Times-Standard that they wanted to send a message to such facilities, a message that would “reverberate throughout the country.”

In August, Skilled Healthcare’s lawyers filed a motion for a mistrial. They alleged that a juror failed to disclose that she once worked for the county coroner’s office and had handled at least one corpse that came from a Skilled Healthcare facility. This juror later came to know the daughter of the deceased, they claimed — and the daughter happened to be a plaintiff. Humboldt County Superior Court Judge Bruce Watson rejected the motion for lack of evidence, and he issued a permanent injunction ordering Skilled Healthcare to abide by the minimum staffing levels mandated by California law.

The Humboldt County District Attorney’s Office announced a settlement in September.   At $62.8 million it represented just a fraction the jury’s original award, especially considering that only $26 million of that is likely to go to the class in the case (with the majority of the remainder going toward lawyer fees). But thanks to the injunction, Skilled Healthcare was ordered to allow a third-party to monitor each of the 22 facilities implicated in the suit for up to two years, at an estimated cost of almost $13 million.   Message received.

Read the entire article here.

Mr. Harvey was run over by the defendant driver, who was driving under the influence at the time of the incident.  The defendant is currently being prosecuted for vehicular manslaughter in Humboldt County Superior Court.

It is not uncommon for the underlying facts of a wrongful death case to also be the bases for a criminal prosecution.  It is important for family members of the decedent in a wrongful death matter to understand the distinction between the two.  The criminal prosecution is handled by the District Attorney’s Office with punishment determined by the court at the time of sentencing.

A wrongful death case is a civil action for damages to compensate the family members of the decedent for a loss of care, comfort, society and affection as a result of their loved one’s death.  The purpose of a wrongful death lawsuit is not to “punish” the defendant, but rather to achieve compensation for the survivors for the loss of their loved one.

The Janssen Law attorneys are experienced in handling the difficult and emotionally stressful issues that accompany a wrongful death matter, and stand ready to assist your family in such a difficult time.