Category Archives: Nursing Home

Watson v. South Shore Nursing & Rehabilitation – Award of Zero for Loss of Society Was Improper Where Evidence of Close Relationship Was Unrebutted

Watson v. South Shore Nursing & Rehabilitation Center, LLC, 2012 IL App. (1st) 103730, Gordon

Facts:  Plaintiff’s decedent was a resident of a nursing home who was left unsupervised with smoking materials and caught on fire, causing exptensive burns to his body that ultimately resulted in an infection that caused his death.  The clinical records indicated that he required close monitoring while smoking so an order was entered in the chart preventing him from smoking without supervision.  Plaintiff filed suit on behalf of the deceased adult children who brought survival and wrongful death claims from the incident.  At trial the plaintiff presented a motion in limine seeking to bar any evidence of alternative causes of death because of a lack of any expert testimony to support the theory, which was granted with the exception that evidence would be permitted to show that plaintiff had previously had a stroke and smoked cigarettes.  Plaintiff presented testimony that the decedent and the surviving family had a close-knit relationship and there was no evidence presented to indicate any the of estrangement.  The jury found in favor of the plaintiff and awarded $1,650,547.86, itemized as follows: $1,200,547.86 for medical bills, $150,000 for loss of normal life, $150,000 for pain and suffering and $150,000 for disfigurement, and $ 0 for loss of society.  Plaintiff presented a post-trial motion seeking a new trial on damages and also a petition for costs and fees for the Nursing Home Care Act count totaling $550,182.62, which represented the 1/3 contingency fee.  The trial court rejected the contingency fee as a reasonable basis for assessing fees pursuant to the Act and plaintiff submitted a Fee Summary of $568,000 with the 2 partners billing time at $550 per hour and the associate at $350 for trial work and $450 per hour for deposition and $350 per hour for pre-trial court appearances.  The defendant objected to the petition claiming duplicative billing and rates that were not reasonable and forwarded its own summary totaling $322,110.00.  The trial court denied the new trial on damages and awarded the plaintiff attorneys fees for the amount suggested by the defendants.  Plaintiff appealed.

Holding:  The jury’s failure to award any damages for loss of society was against the manifest weight of the evidence and, therefore, the cause is remanded for new trial on the issue of damages for loss of society.  Also, the trial court’s reduction of attorneys fees requested by Plaintiff was not so unreasonable as to constitute an abuse of discretion.

Filed in Trial Book Under:  New Trial; Damages – Wrongful Death; Attorneys Fees – Nursing Home Care Act

Commentary:  This is a good case on the issue of damages.  The opinion contains a good history of the development of non-pecuniary damages in wrongful death cases in Illinois and cites to several cases that help define the elements of damage for loss of society that should be presented at trial, like “love, affection, care, attention, companionship, comfort and protection.”  A defendant can rebut a claim for loss of society by presenting evidence that there was estrangement between the decedent and the beneficiaries, or that the deceased would have died from unrelated causes even absent the defendant’s conduct.  Neither was done here, so the evidence of loss of society was unrebutted.  This was due in part to the plaintiff presenting evidence from staff members that corroborated their theory that the decedent’s family was close and visited often, which is always a good idea to present this kind of evidence if you can in a nursing home case, and also a strategically effective motion in limine barring the defense from arguing alternative causes of death on the grounds that there was no expert testimony to support such a finding.  This is good work by the plaintiff’s attorneys and left the defendant with nowhere to go on this appeal.  I’m not sure why the jury found zero damages on the loss of society.  It could have been a compromise on other elements, or it could be that the family came across horribly in person and they did not believe the veracity of their loss of society claims.  However, in the written record, there was no other contrary evidence and the appellate court cited cases where a “jury may not arbitrarily reject the testimony of an unimpeached witness” to support its holding to order a new trial.

This case is not so great for plaintiffs on the issue of attorneys fees.  The plaintiff’s attorneys initially tried to get the court to award 1/3 of the judgment pursuant to their contingency fee contract.  However, the trial court rejected that request and required an itemization of time instead.  Although the appellate court here does not outright reject the concept of using a contingency fee as the basis for fees in nursing home cases, it’s application of the Lodestar method seems to imply that total hours multiplied by hourly fees is the appropriate method to use.  Obviously, in large verdict cases, using the contingency fee contract could be very beneficial to the plaintiff and increase the fees significantly, but at the same time, would we want the defendant’s trying to enforce the contingency fee contract on smaller verdicts?  The point of allowing attorneys fees in the first place is to give attorneys the justification to pursue smaller cases against nursing homes.  Therefore, it’s not surprising that the trial court rejected the plaintiff’s request.  It seems as if the fee petition had some holes in it that the defendant was able to exploit, but the plaintiff still ended up with $322,000 in fees plus costs added to the verdict, and they get a new trial on loss of society damages, so it seems like a pretty good result all things considered.

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Filed under Damages, Negligence, Nursing Home, Post Trial