In the recently published case Samantha B. et al. v. Aurora Vista Del Mar, LLC, et al.[i], the Second District Court of Appeal held Civil Code section 3333.2, known as the Medical Injury Compensation Reform Act of 1975 (MICRA), was inapplicable to plaintiffs’ causes of action under the Elder Abuse and Dependent Adult Civil Protection Act (Elder Abuse Act). The Court of Appeal therefore upheld a verdict of more than $13 million in non-economic and punitive damages against defendants’ acute psychiatric hospital and hospital management company.
Clear and Convincing Evidence of Reckless Neglect Found in an Acute Psychiatric Hospital
The Court of Appeal found clear and convincing evidence both Aurora Vista Del Mar, LLC (“Aurora Vista”) and its management company, Signature Healthcare Services, LLC (“Signature”) recklessly neglected the plaintiff patients. Defendants used substandard policies and procedures which exposed patients to sexual predation by: hiring unlicensed mental health staff, such as the employee who raped the plaintiffs; by “understaffing” Aurora Vista; and by failing to protect the plaintiffs from sexual predation[ii]. Signature set these policies, which made sexual predation almost inevitable.[iii]
Apportionment of Fault, Non-Economic and Punitive Damage Award Upheld
The jury allocated 35 percent of the fault of the fault to the sexual predator, 35 percent to Aurora Vista, and 30 percent to Signature.[iv] The jury also awarded $13.25 million in non-economic damages to the three plaintiff patients and $150,000 in punitive damages against Aurora Vista and Signature.[v] The Court of Appeal disagreed with defendants that plaintiffs’ damages were excessive because there was ample evidence to support such damages and because the damage limitation in MICRA does not apply to living plaintiffs under the Elder Abuse Act.[vi] The Court of Appeal also disagreed that the allocation of fault was improper.
How Can We Fight Such Nuclear Verdicts®?
This nuclear verdict underscores the importance of defusing jury anger in all phases of litigation. How do we do that? From the outset of litigation, defense attorneys should interview their corporate client’s staff and identify the staff members who can persuasively tell the client’s story. Who can humanize the corporate client by telling the jury about all the good care they provided to the plaintiffs? This person or persons should be prepared to tell a story of hopeful optimism; the story not of perfect care in an impossible and unreasonable world, but of the staff’s best efforts to provide conscientious care to plaintiff in the real world. The defense must tell this story in a way which will resonate with the jury, and it must be more plausible and encouraging than the plaintiff’s story.
Defense attorneys should also prepare their client to accept responsibility for something relevant. Not responsibility for plaintiff’s multi-million dollar claim for damages, or for committing the torts alleged by plaintiff, but for something of consequence. Perhaps the client can accept responsibility for providing custodial care to the elderly or dependent plaintiff using its best efforts, or for supervising the plaintiff regularly to protect them from an injurious fall. Should the client’s staff agree to providing perfect custodial care to plaintiff or to preventing plaintiff from ever falling? No! This is plaintiff’s story; a story of perfect care in an impossible and unreasonable world. Instead, the defense must show they care about the plaintiff and plaintiff’s well-being in the real world.
Nuclear Verdicts® such as the verdict in Samantha B are often caused by the jurors’ anger about the allegedly grievous injuries plaintiff suffered due to defendant’s lack of caring. Defense attorneys should be prepared to flip plaintiff’s narrative on its head by telling a plausible, encouraging story about how much the defendant cares about the plaintiff in the real world.
[i] Samantha B. et al. v. Aurora Vista Del Mar, LLC, et al., 2d Civ. No. B302321, Super. Ct. No. 56-2015-00464635-CU-PO-VTA (Ventura County).
[ii] Samantha B., supra, at pp. 13 to 15.
[iii] Id. at 23.
[iv] Id. at 7.
[v] Id. at 7.
[vi] Id. at 19-20.