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Thursday, July 11, 2013

Judge Mike Maggio reduces unanimous jury verdict in nursing home death by 81 percent

Posted By on Thu, Jul 11, 2013 at 12:40 PM

click to enlarge SAVES NEGLIGENT NURSING HOME $4.2 MILLION: Judge Mike Maggio.
  • SAVES NEGLIGENT NURSING HOME $4.2 MILLION: Judge Mike Maggio.

SAVES NEGLIGENT NURSING HOME $4.2 MILLION: Judge Mike Maggio.
  • SAVES NEGLIGENT NURSING HOME $4.2 MILLION: Judge Mike Maggio.
Circuit Judge Mike Maggio of Conway, who hopes to rise to the state Court of Appeals, has sent signals throughout his career and, since he announced for higher office, that he's a right-thinking Republican judge, conservative and no activist. In other words, he'll rule with corporate interests and against injured parties.

Who's an activist now?

Maggio, a self-styled "conservative judicial voice of reason," has negated the unanimous jury verdict in a nursing home death case in Faulkner County. Wednesday, he reduced its compensatory damage award by a whopping 81 percent, from $5.2 million to $1 million. Faulkner County, you should know for context, is not viewed as fertile ground for damage lawsuits. No runaway juries here.

But this jury heard a horror story. Martha Bull, 76, died at the Greenbrier Nursing and Rehabilitation Center in 2008. She was in excruciating pain. A doctor had ordered her transferred to a hospital emergency room for treatment of abdominal pain, but the order was lost in the shuffle. She suffered, crying loudly all the while, until she died. This is not a matter of a little locally owned family operation that made a bad mistake of omission and faced a huge financial penalty. It's one of a chain of nursing homes, set up as an independent corporation but controlled by a Fort Smith corporate owner, Michael Morton's Central Arkansas Nursing Centers. The owner is known for setting up companies with scant insurance coverage (used up by legal defense fees) behind a corporate veil designed to hamper or defeat claims such as these. The verdict was only the first step in what would have been a difficult legal effort to pierce that corporate veil to get at assets to pay the jury's judgment.

The jury found the nursing home liable for negligence, medical malpractice and violation of the patient's rights.

Maggio saw the case differently than the jurors on the critical element — money. (And, in the process sent the warmest sort of signal to the anti-damage-suit Arkansas State Chamber of Commerce, which will undoubtedly reward him with an endorsement soon, if not its tort reformer of the year award.)

The judge denied a nursing home defense motion that the entire verdict be set aside. He found there was "substantial evidence" to support findings of liability.

But Judge Maggio found the $5.2 million judgment was excessive, so great that it "shocks the conscience of the court." (Though, let us note, not the conscience of 12 jurors who heard evidence of anguish of a dying woman.) The judge said the plaintiffs' case "inflamed the passion and prejudice" of the jury, resulting in, effectively, punitive damages when only compensatory damages were allowed.

Life and pain are, in short, cheap in Judge Mike Maggio's court. That's the way the Arkansas State Chamber of Commerce likes it.

What's shocking to the conscience is that Mike Maggio is running for the bench. His past comments include displaying little sympathy for the unfortunate. Unflattering, too, was his reported use of some sort of badge to get out of a speeding ticket. So is his upside-down finances on his expensive home (he owed on it about half what he was willing to give Martha Bull's heirs). So is his previous unethical behavior, including use of campaign money for personal expenses and questions about continued operation of his law office after he took the bench.

What's also shocking to the conscience is the low price set on an old woman's suffering and mental anguish, a price that is low enough to discourage lawyers from undertaking the immense trial work, risk and long appeals to get justice for people who die helpless and unheeded in nursing home beds.

I asked Thomas Buchanan, one of the lawyers for Bull's survivors, if he would appeal the ruling. He declined comment. The judge earlier gagged lawyers in the case, having indicated in court he was unhappy about my original report on the big jury verdict in his court. Perhaps publicity about his huge reduction of damages for the family members of an old dying woman, to the benefit of a corporate nursing home operator, will be more to his liking.

BTW: Michael Morton, I was told, is new board chair of the trade association that lobbies for nursing homes. They give a lot of money to political candidates. We'll keep an eye out.

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