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Judge rejects use of comparisons

New Supreme Court case cited

A disabled Henry County woman keeps a $1.85 million award – reduced from a jury verdict of $6.5 million – as a Roanoke City circuit judge rejected defense claims that the sum awarded did not line up with past awards for similar injuries.

The judge was quick to cite a brand new decision of the Supreme Court of Virginia to rebuff the defendants’ plea to reduce the award of $1.5 million in compensatory damages.

On Jan. 10, the Supreme Court reinstated a $6.2 million wrongful death award for a man whose wife died in a car accident in 2007. The trial court said the husband’s award was disproportionate to damages awarded to the wife’s parents, but the high court majority rejected that “proportionality” analysis as a basis for knocking down the jury award.

On Jan. 22, Roanoke Judge Charles N. Dorsey pointed to that recent opinion – Allied Concrete v. Lester – to support his decision upholding the $6.5 million verdict for the Henry County woman injured in a fall at a nursing home in the new case, Crouse v. Medical Facilities of America XLVIII (VLW 013-8-009).

Lawyers for the nursing home defendant had argued the verdict was excessive in comparison to three prior Virginia personal injury cases. The Supreme Court “no longer adheres to the average verdict rule,” Dorsey wrote, citing Lester.

“The ‘math of the macabre’ suggested by Defendants attempts to quantify Plaintiff’s loss by reference to supposedly more gruesome cases. The Court’s role in assessing jury verdicts does not submit to such distasteful precision,” Dorsey said.

Neither a new trial nor a verdict reduction was warranted, Dorsey concluded. “The record is replete with evidence of plaintiff’s severe injuries and diminished quality of life,” he said.

“I think Judge Dorsey’s ruling is an extension of Lester, but it is an extension also of the foundation laid in the law before Lester,” said Robert W. Carter Jr. of Appomattox, who represented the injured patient.

Liability in the case centered on whether the nursing home had used a bed alarm to alert staff when the patient was in danger of a fall. The jury concluded no bed alarm was used.

The patient, Virginia Crouse, had been receiving therapy to increase her mobility after a stroke. At the nursing home, she left her bed to use the bathroom and fell as she returned to the bed, Carter said.

A bed alarm alerts the staff when a resident rises from a bed. Carter argued the use of an alarm would have prompted the staff to check on Crouse well before her fall.

Crouse was somewhat independent before her accident, but the fall fractured her hip and shoulder. After surgery, she required a hospital bed and a mechanical lift at home. She took six types of narcotics for pain.

Crouse incurred $72,000 in medical and special care expenses.

Dorsey said $1.5 million in compensatory damages was not excessive.

“Based on the magnitude of Plaintiff’s injuries and damages the verdict does not shock the conscience of the Court or suggest that the jury was influenced by passion, corruption or prejudice,” Dorsey said.

The defendants objected to one of Crouse’s expert witnesses for offering an opinion as to whether a bed alarm was used. Dorsey said experts on both sides had offered opinions – based on evidence – on whether a bed alarm had been in use. The judge found the testimony of both experts was proper.

The defendants cried foul over Carter’s closing arguments. They claimed he unfairly compared the parties’ unequal economic status and quoted scripture to foster a “punitive spirit” in the jury. The argument was waived, Dorsey held. Dorsey said he instructed the jury to avoid passion and, furthermore, the defendants had failed to object at the time of the closing argument.

Dorsey also approved the use of an undisclosed witness to impeach the defense’s expert nurse. The nurse testified as an expert on the use of bed alarms, and Crouse produced a witness who said the nurse once told him there was “no excuse” for not having a bed alarm for a particular patient.

Dorsey said the nurse’s testimony, impeached with the surprise testimony, was relevant and not collateral.

The jury awarded $5 million in punitive damages after a separate proceeding in which the jury was told about government reports showing improper non-use of bed alarms in other MFA facilities. After the trial, the defendants argued the reports were irrelevant hearsay, but Dorsey said the reports were probative of whether the defendants had notice and actual knowledge of similar incidents.

Dorsey rejected defense arguments that the defendants never ratified the alleged willful and wanton conduct of its employees, so as to expose the companies to punitive damages. The defendants’ “instructions and training materials improperly taught staff to view bed alarms as restraints and encouraged the staff to use restraints less often,” Dorsey wrote in upholding the punitive award.

With the $5 million punitive damage award reduced to the $350,000 Virginia cap, the judgment without interest will be $1.85 million. Carter said interest to date has pushed the recovery to $2,088,000.

Carter said he was unable to get the other side to talk before trial. “It’s a much easier undertaking when the other side refuses to discuss settlement with you,” he said.

Richard C. Sullivan Jr. of Falls Church represented the defendants post-trial. “We’re disappointed with the decision. We disagree with it, and we are considering all our appellate options,” Sullivan said.

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