Lovenstein et al. v. Eskaton Fountainwood Lodge et al.

Elder abuse, fraud

Sacramento County

Superior Court Judge Eugene L. Balonon

Plaintiff's lawyers: The Law Office of Edward P. Dudensing, Edward P. Dudensing; Nursing Home and Elder Abuse Law Center, Jay P. Renneisen; Law Offices of Thomas G.C. McLaughlin, Thomas G.C. McLaughlin

Defense attorneys: Beach Cowdrey Jenkins LLP, Thomas E. Beach, Rachel K. Mandelberg, Sean D. Cowdrey

Edward P. Dudensing has a philosophy.

"I'd like to pursue cases that involve systemic failures rather than a person making a mistake," said the Sacramento elder abuse attorney. "People make mistakes. But this was not a mistake."

He was referring to the 2012 death of 77-year-old Barbara Lovenstein at the Eskaton FountainWood Lodge less than a month after she entered the retirement facility in the Sacramento suburb of Orangevale. Dudensing's complaint claimed she died after aspirating on food due to overuse of the sedative Ativan. The drug was to be given "as needed" to control symptoms of epilepsy, but the complaint alleged staff gave it to her far more often than needed to make her easier to manage.

Jay P. Renneisen

Dudensing set out to prove his case on multiple levels, he said. These included showing that the detailed staff protocols on file with the state were not actually used in the facility and finding testimony given by employees in prior litigation.

He also dug into executive pay at Eskaton showing the CEO's pay was far larger than at comparable organizations, he said. This was necessary in part to counter arguments that Eskaton didn't have a profit motive to cut corners.

"I think they are pretty aggressive in their litigation stance because of this nonprofit status," Dudensing said. "In their opening statement he came out guns a blazing on this talking about how there's no owners who can take profits."

Sean D. Cowdrey, a partner with Beach Cowdrey Jenkins LLP in Oxnard who was part of Eskaton's defense team, said an appeal has been filed by attorneys with Horvitz & Levy LLP.

"The trial court allowed a number of things to go to the jury that the judge should not have allowed, including duplicate damages," Cowdrey said. "But after the verdict the judge ended up getting it correct on the compensatory damages."

This was a reference to $7.5 million in damages that was reduced to $250,000 under the state's elder abuse law, which uses the cap on non-economic damages from the Medical Injury Compensation Reform Act. A post trial motion reduced the punitive damages from $35 million to $14 million, he said.

-- Malcolm Maclachlan