Jury begins deliberations after closing arguments in Rosewood trial

Amelia Flood Feb. 24, 2010, 3:00pm

A negligence case against an Edwardsville nursing home is now in the hands of the jury after nearly three hours of closing arguments Wednesday morning.

While plaintiff's counsel Robert Gregory stressed a finding that Rosewood Care Center of Edwardsville violated its own standard of care by state investigators, his counterpart, Dennis McCubbin, attacked the investigator as biased and Gregory for using "trial lawyer logic."

Rosewood is being sued by Martha Flanary, on behalf of her husband, Gerald's estate.

Martha Flanary alleges the nursing home violated its own standard of care when it allowed her husband to develop an ulcer on his left heel and for failing to notify her and his doctors as it deteriorated in December 2003.

Rosewood counters that it cared for Gerald Flanary and that his ulcers were the result of his underlying medical conditions, including diabetes and peripheral vascular disease.

The trial opened Feb. 16 and continued into Wednesday. The defense concluded its case Tuesday afternoon.

Speaking first in closings, Gregory called Gerald Flanary's case as "breakdown."

"I think the evidence has been, ladies and gentlemen, that Rosewood failed in all counts," Gregory told jurors. Gregory cited the testimony of Christianne Von Ronnakirk of the Illinois Department of Public Health, who found Rosewood had breached its standard of care in the Flanary case.

He argued that the nursing home should have called Gerald Flanary's doctors as he worsened.

Gregory called testimony by members of Rosewood's staff about not recalling meetings with Von Ronnakirk "preposterous."

"Like it was not a big deal, a thing easily forgotten," Gregory said. "What happened to Gerald Flanary will never be forgotten by Martha or her children."

Gregory defended Gerald Flanary's plastic surgeon, Dr. Michael Beatty, who cut open his patient's blister, a point of some controversy during the trial.

He stressed charting errors made by the Rosewood staff and the surgeries Gerald Flanary underwent on the foot ulcer after leaving Rosewood's care.

In speaking of damages, Gregory did not offer any opinion other than he asked jurors to award Martha Flanary just under $35,000 for her husband's medical expenses.

After a short break, defense attorney Dennis McCubbin told the jury "Rosewood deserves your fairness."

He told them he wanted to discuss the "reality" of Gerald Flanary's life, talking at length about his Alzheimer's Disease and history of foot ulcers.

"He had ulcers before he got to Rosewood and he had horrible ulcers after he left Rosewood," McCubbin said.

He called Gregory a "trial lawyer," multiple times and alleged that his counterpart liked to "gloss over" Gerald's care.

McCubbin pointed to 316 pages of medical records from the nursing home as proof that Gerald Flanary was well cared for.

McCubbin attacked Von Ronnakirk's investigation as "sloppy." He stressed that although Rosewood was found to have violated its own policies, the state did not find it negligent.

He spoke of Von Ronnakirk's single year of work in a nursing home setting as "bailing" on taking care of the elderly.

Von Ronnakirk was not the only plaintiff witness to draw McCubbin's criticism.

He argued that Beatty, who had testified that he believed Rosewood had not properly cared for Gerald Flanary, was "pointing the finger" at his clients.

McCubbin cited the testimony of his own expert, Dr. Gregory Compton of South Carolina, as critical of Beatty's treatments. McCubbin also took issue with Beatty's attitude.

"In his own ego, he can't accept what happened to Mr. Flanary," McCubbin said.

In his final response, Gregory dismissed McCubbin's stress on his trial lawyer status.

"I haven't been called a 'trial lawyer," so much or with such a snarl by opposing counsel for a long time," Gregory observed. "I'm proud to be a trial lawyer."

Gregory went on to tell the jury that the defense "can't buffalo you," about what happened to Gerald Flanary seven years ago.

Closing arguments ended just before noon Wednesday. Callis instructed the jury and they began deliberations immediately after.

This is not the first trial related to Rosewood where McCubbin and Gregory have sparred. The pair faced each other last year in a case brought by a former patient's son over his father's fall and hip injury at the Edwardsville facility.

The jury found for Gregory's client.

Rosewood is appealing that decision.

Madison County Chief Judge Ann Callis is presiding. The case is assigned to Madison County Circuit Judge Barbara Crowder. However, Callis took over the trial last week as Crowder was set to preside over another suit's trial at the same time.

The Flanary case is Madison case number 05-L-747.

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