Judge rejects mistrial claim in Sacramento elder abuse trial

Published: Saturday, Feb. 16, 2013 - 12:00 am | Page 1B
Last Modified: Friday, Apr. 19, 2013 - 12:12 pm

The judge rejected an effort Friday by lawyers for Emeritus Corp. to call off the Sacramento civil trial where the survivors of an Alzheimer's resident are suing the assisted living giant for elder abuse and wrongful death.

Emeritus attorneys wanted a mistrial on grounds that plaintiffs lawyer Lesley Ann Clement improperly contacted several current and former company employees – and "coerced" one of them – to influence their testimony.

Sacramento Superior Court Judge Judy Holzer Hersher turned back the motion, as well as an Emeritus attempt to disqualify Clement from the case, in a tentative ruling she released Thursday.

Hersher confirmed her ruling Friday, telling the Emeritus lawyers who continued to push for the mistrial and the disqualification, "I frankly have not heard anything today that changes my mind about these circumstances."

Outside court, the attorney who represented Clement called the Emeritus action "frivolous" and "a smear campaign." The attorney, Jim Murphy, said the defense action filed Jan. 25 suggests they believe they are losing the trial.

"Desperate times require desperate measures, and this was a desperate measure by a desperate party – I think they can read the tea leaves," said Murphy, a San Francisco lawyer who specializes in representing embattled attorneys and judges. "The testimony is not going well for them."

The four Emeritus attorneys in court Friday from the firm of Lewis, Grisbois, Bisgaard & Smith declined to comment on the judge's ruling.

Emeritus is the largest assisted living company in the country, with 477 communities in 44 states. It has come under fire in the Sacramento lawsuit filed by the children of Joan Boice, who lived at Emeritus at Emerald Hills in Auburn for three months in late 2008, before she died early the next year at age 82.

Boice's family claims she developed life-threatening pressure ulcers, lost significant weight and suffered a debilitating fall during her stay at Emerald Hills. The sores were listed on her death certificate as contributing to her death three months after she left Emerald Hills.

Lawyers for Emeritus charged in their motion that Clement had contacted several potential witnesses their firm already represented. In her ruling, Judge Hersher said the defense motion "is really limited to two witnesses," neither of whom was any longer employed by Emeritus when Clement contacted them. One had been fired. The other had either been terminated or departed by "mutual consent," according to court papers filed by both parties.

One of the witnesses, former Emeritus regional nursing director Doris Marshall, answered "yes" at trial when Clement asked her if her job was really "more of a regional director of cover-up" for Emeritus.

Marshall also testified at trial that Emeritus employed a philosophy of "closing the back door" on its clients "to retain residents as long as you possibly can."

In her trial testimony, Marshall – after meeting with Clement – recanted her statements from a deposition that nobody working under her at Emerald Hills ever told her they were "overwhelmed" by their work or otherwise had quality concerns about the Auburn facility.

The second witness Emeritus accused Clement of trying to influence was an Emerald Hills line caregiver, Lynda Kittle, who worked closely with Joan Boice. Emeritus attorney Lisa Cooney said in court Friday that Kittle "was essentially coerced" when Clement subpoenaed her before trial.

Emeritus attorneys described Kittle in their court papers as "a valued member of the Emerald Hills team" who "was only recently terminated because she did not show up for work."

Kittle "was involved in documenting and providing medications to Boice," repositioning her in bed so she didn't get pressure sores and helping her eat, according to the defense. She "was on duty and supervising Boice at the time of her fall," defense papers said. The Emeritus lawyers said Kittle's work complied with the "standard of care" for the industry but that her actions with Boice "clearly and indisputably could bind the corporation" under the plaintiffs' theories of the case.

Although Kittle was on the plaintiffs' witness list, Clement did not call her during her presentation to the jury. Clement wouldn't say Friday whether she intends to call Kittle as a rebuttal witness after the defense concludes its case next week.

The Emeritus lawyers asked the judge to bar Clement from calling Kittle as a witness, limiting her testimony to a deposition she has already provided. Hersher rejected the request.

© Copyright The Sacramento Bee. All rights reserved.

Read more articles by Andy Furillo



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