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verdicts-and-settlements-article

McLaughlin v. Garden Spot Village

$7.5 Million 

Date of Verdict: May 3.

Court and Case No.: C.P. Lancaster No. CI-2014-01922

Judge: Judge Leonard Brown III.

Type of Action: Elder abuse, negligence.

Injuries: Sexual assault.

Plaintiffs Counsel: Matthew Stone, Carl Wilander and Lorraine Donnelly, Wilkes & McHugh, Philadelphia.

Defense Counsel: Hugh O’Neill, Thomas, Thomas & Hafer, Harrisburg.

Comment:

A Lancaster jury handed a $7.5 million verdict to the family of an elderly woman who was sexually assaulted while a resident at an Akron, Pennsylvania, nursing facility.

On May 3, following nearly two weeks of trial and four hours of deliberation, the jury hit Garden Spot Village with the multimillion-dollar award, finding that the facility and its parent company were 85 percent liable for the 2013 sexual assault of 82-year-old Dorothy Brace.

The jury further found that the facility had shown reckless indifference in failing to prevent the assault, which was carried out by another nursing home resident who had a history of sexual violence. Although the case was set to proceed to a bifurcated punitive damages phase, the parties subsequently agreed to settle the case for $6.75 million.

The plaintiffs, who are administrators of Brace’s estate, raised claims that the nursing home facility, Garden Spot Village of Akron, doing business as Maple Farm Nursing Center, and its parent company, Garden Spot Village, failed to prevent both the January 2013 sex assault and more than 20 falls that occurred during Brace’s stay.

However, before hitting the trial phase, the case broke some legal ground, raising a first-impression issue that had to be decided by the state Superior Court.

In July 2016, a three-judge panel determined that the Older Adults Protective Services Act does not prevent individuals who report elder abuse from testifying in subsequent civil litigation. The decision rejected the nursing home’s argument that its employee’s testimony was privileged under the act, and instead allowed the plaintiffs to depose, under seal, a Garden Spot Village employee who reported the abuse to the Lancaster County Office of Aging.

The Pennsylvania Supreme Court denied a request to take up the issue on appeal, deciding instead to leave the Superior Court’s holding intact.

According to the plaintiffs’ pretrial memo, Brace was suffering from worsening dementia when defendant Glenn Hershey, who was 20 years younger than her, sexually assaulted her. Hershey subsequently pleaded guilty to involuntary deviate sexual intercourse and was sentenced to eight to 20 years in prison.

The memo contended that Hershey, who had cerebral palsy, had targeted Brace because of her dementia, and that the nursing home facility knew he was a registered sex offender who had previously been convicted of rape. The memo also said Hershey had threatened to rape a caregiver at the facility, and cited concerns the facility’s staff raised about Hershey’s sexually aggressive behavior toward Brace prior to the assault. Reports from the staff, the memo said, also showed that the facility was aware the two were in a relationship, but that staffers did not believe Brace had the capacity to consent.

The memo further said the facility failed to adhere to its policies against allowing the two to be unsupervised in a room together.

In its pretrial memo, the nursing home noted that it screened Hershey before allowing him to live at the nursing home, that Brace ate better and was much happier after her relationship with Hershey began, that the staff monitored the two, and that it was determined Hershey was not capable of hurting, or forcing himself on any other resident at the facility.

 —Max Mitchell, of the Law Weekly

Max Mitchell

Max Mitchell is a reporter with The Legal Intelligencer, focusing on litigation in Pennsylvania with a specific emphasis on Philadelphia courts. Follow him on Twitter @MMitchellTLI.

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