Barry S. Landsberg

Battling to limit the liability of his nursing home clients, Landsberg is set to argue before the state Supreme Court next year that a key section of the Health & Safety Code doesn’t authorize punitive damages and caps awards at $500 per lawsuit.

The suits in question are brought by skilled nursing facility residents who allege violations of their rights, but the high court’s decision could extend to other providers such as hospitals.

“There is a conflict of decision on this issue in the appellate courts that could leave trial courts confused,” Landsberg, a health industry litigation partner at Manatt, Phelps & Phillips said of the meaning H&S Code section 1430(b). Landsberg’s record of engagement in this arena is shown by the fact that he has been counsel for the defense in the three cases to focus on the matter.

In the upcoming high court case, Landsberg’s client is Toledo, Ohio-based HCR ManorCare Inc., which operates more than 500 nursing and rehabilitation centers, assisted living facilities, outpatient rehabilitation clinics and hospice and home healthcare offices in the U.S. John Jarman, a patient at an HCR facility in Hemet, persuaded a jury that the nursing home had violated his rights 382 times by failing to provide him required physical assistance with dressing, eating, toilet use, hygiene and bathing. The jurors awarded him $250 per violation for a total of $95,500 plus $100,000 in punitive damages. An appellate panel affirmed. It comes down to whether the statute means $500 per violation or $500 per lawsuit, Landsberg said.

“There have been multiple attempts over the years to change the law but the Legislature said no, it’s $500 per suit. The Jarman appellate panel said that can’t be right, so it came up with a different approach.”

In his briefing to the high court Landsberg contended that the statutory language and legislative history of the section at issue make clear that $500 per lawsuit is what lawmakers intended. Jarman v. HCR ManorCare Inc., S241431 (Ca. Sup. Ct., filed April 24, 2017).

Class actions against nursing homes mushroomed a decade ago after a Humboldt County jury found staffing deficiencies at a facility there and awarded the plaintiff $677 million, making such cases attractive to plaintiff firms, Landsberg said. Subsequent cases have been much less successful, but individual suits like Jarman’s are frequently filed. The outcome of Jarman will be of great interest to the plaintiff bar, industry trade groups and tort reform organizations, he added. For Landsberg, it will be his fifth appearance at the lectern for parties or amici.

“I love being in front of the Supreme Court,” he said.

— John Roemer