Despite a $273,607.60 plaintiff’s verdict reached March 8 in Madison County Circuit Court, both sides in a six-year old wrongful death case against Rosewood Care Center are re-arguing.

Defense attorney Dennis McCubbin filed a motion for new trial on the issue of damages saying the jury’s award of $195,000 for “loss of normal life” was excessive in view of the evidence presented at trial.  The jury also awarded damages totaling $78,607 for the decedent’s pain and suffering, medical expenses and grief, sorrow and mental suffering for the decedent’s nieces.

“Defendant respectfully submits that the jury was confused,” McCubbin wrote.

The case involves plaintiff Diana Obernuefemann who sued the Edwardsville nursing home in 2007, claiming it was negligent in the care of her aunt, Kathleen Adams.

She accused nursing home staff of placing a Duragesic narcotic patch on Adams, then 66, before moving another one that was in place as a result of a hospital stay. Adams suffered an overdose and aspiration pneumonia and died on June 7, 2006.

Plaintiff attorney Robert Gregory seeks to have prior rulings that granted summary judgment to defendants Larry Vander Maten and Darrell Hoefling as non-owners of the nursing home reversed so they would be liable for the jury verdict.  His motion argues for further proceedings to obtain “a full and complete determination of whether defendants Vander Maten and Hoefling are ‘owners’…and if so, to grant plaintiff a new trial against all defendants.”

In his post trial motion, Gregory states that he proceeded to trial against the licensee of the nursing home only, which was not insured for Adams’ injury.

“…[D]efendant allegedly sold the facility to Bravo Care of Edwardsville, Inc. during the course of these proceedings, changed its name to Hovan Services of Edwardsville, Inc. and thereafter dissolved,” Gregory wrote.

The trial was presided over by Circuit Judge Ann Callis. During pre-trial proceedings, Circuit Judge Dave Hylla presided and granted summary judgment to Vander Maten and Hoefling.

McCubbin also wrote in his post trial motion that the jury may have incorrectly believed that the loss of normal life category of damages was intended to compensate Adams for unlived life expectancy.

“’Loss of normal life’ damages are not intended to compensate plaintiffs for unlived life expectancy,” McCubbin wrote.

He wrote that the jury was instructed that the life expectancy for a woman Adams’s age was 19.2 years – “an instruction intended to assist the jury in calculating wrongful death damages. Instead, however, the jury appears to have used this instruction to calculate damages for plaintiff’s injury claim. In arriving at its ‘loss of normal life’ award, it seems likely the jury multiplied 19.2 years by $10,000 and rounded up in some manner.”

Madison County case number 07-L-239

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