Verdict against Rosewood Care Center upheld at Fifth District

Ann Maher Apr. 5, 2012, 4:25am


The Fifth District Appellate Court has upheld a Madison County plaintiff's verdict in a case that was tried twice against Rosewood Care Center nursing home of Edwardsville.

Jurors awarded $149,115.13 to Paul Graves, administrator of his father's estate in April 2009. Paul Graves contended that Rosewood was negligent in caring for his father, Alfred Graves, during a January 2003 stay at the facility. On the first day of his stay, Alfred Graves fell and broke his hip. Paul Graves claimed that the nursing home violated its own procedures and did not give his father adequate care.

Circuit Judge Dave Hylla presided over both trials. The first one ended in mistrial in 2007 after jurors deadlocked.

On appeal, Rosewood raised five issues: (1) whether the verdict was against the manifest weight of the evidence, (2) whether the court erred in its issuance of an instruction on the definition of neglect, (3) whether the trial court erred in its issuance of instructions on regulations promulgated pursuant to the Act, (4) whether the trial court abused its discretion by giving an instruction based on IPI 5.01 (Illinois Pattern Jury Instructions, Civil, No. 5.01 (2000)), and (5) whether the trial court erred by admitting into evidence a bill from another nursing home.

"Defendant contends that the verdict was against the manifest weight of the evidence and asserts that the jury must have errantly presumed that defendant was negligent merely because a resident fell," the opinion states.

"A review of the record, including the evidence presented by plaintiff and the instructions to the jury, indicates that the jury did not operate under such a presumption. In other words, the record supports the jury's verdict that defendant was negligent."

In the opinion authored by Justice Richard Goldenhersh, the appellate court also held that jury instructions as a whole, properly informed the jury of the standard for liability. They also ruled that the court properly admitted a bill from Hitz Nursing Home for care rendered after Alfred left Rosewood, and allowed the jury to consider the matter.

Justices James Donovan and James Wexstten concurred.

In the appeal, plaintiff also requested that the Fifth District remand the case with instruction for determination of additional attorney fees and costs.

"...[P]laintiff does not point to any pleading in the record requiring remand with instruction, and thus the case is simply affirmed... We note, however, that...plaintiff is entitled to submit a supplemental petition to the trial court for attorney fees and costs incurred during the appellate process."

Plaintiff attorney Robert Gregory and defense attorney Dennis McCubbin argued fiercely during both trials.

After the 2009 verdict was reached, McCubbin had asked Hylla to set it aside, citing juror bias.

McCubbin stated that juror Ray Alexander, a plaintiff attorney with Brown & Crouppen in St. Louis., held an anti-defendant bias. McCubbin cited Alexander's attorney Website advertising.

McCubbin also claimed Alexander was overheard congratulating Gregory immediately after the verdict was read.

Brown & Crouppen specializes in personal injury claims and advertises widely in the St. Louis market, including Madison County.

McCubbin argued that Alexander misrepresented his interest in the case to the court for economic reasons and that he could not be impartial.

McCubbin pointed to an affidavit of one of his fellow attorneys who claims to have overheard Alexander tell Gregory, "Congratulations, Bob. I'll call you later," immediately after the verdict as well as that the jury foreperson, Perha Ramsey, wanted to award the plaintiff "a million dollars."

"I think it's completely outrageous that Mr. Alexander sat here in this courtroom and said he could be a fair and unbiased person," McCubbin said during the hearing on his motion to set aside the verdict.

Gregory countered that Alexander had been candid about his current and past employers.

Hylla joined in the conversation, pointing out that Alexander's statements were taken from an advertisement on the Website.

"I have no proof those were his true feelings," Hylla said of the quotations. "I don't know if an advertisement rises to the same level as his sworn testimony. I don't know who put the ad together."

Gregory pointed out that both the Missouri and Illinois Bar Associations allow the kind of law firm advertising that the Web site and its content fall under.

"Mr. Alexander is obviously biased," McCubbin said to Hylla. "That should bother this court."

The case is Madison case number 03-L-1166.

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