By Henriette Campagne
By the time Timothy G. Lynch delivered his closing argument in Ward, et al. v. Trusted Health Resources, Inc., et al., he was confident he had the wrongful death case in the bag.
Indeed, Lynch was so confident that, when the jury returned a $26.5-million verdict in his clients' favor, the plaintiffs' lawyer hardly batted an eye.
"Given [the defendant's] we-can-do-no-wrong attitude, and given the horrible results of what happened, I wasn't surprised at all," says Lynch, who represented the family of a severely handicapped man and his grandmother who were murdered by a six-time convicted felon hired as a home-health-care worker.
The jury's verdict, finding the health-care agency negligent for hiring the felon without a background check, is believed to be the largest personal-injury verdict in state history.
But Lynch says the case was about much more than money.
"This is an industry ripe for gross abuse," notes the Boston attorney of the home-health-care business. "The only way to affect the industry is to either pass a statute or get a big verdict. I took the case to make a point."
While the point may have been made, how much of the $26.5 million will ever be collected is uncertain. The health-care agency declared bankruptcy the day after the verdict and its insurance company is contesting coverage. Meanwhile, the association which had subcontracted with the health-care agency was found vicariously liable for the judgment (despite a jury finding that the association's negligence did not cause the injury) but had its liability capped at $20,000 by the judge pursuant to the state charitable immunity cap. The association settled with the plaintiffs for an undisclosed sum before an appeal of the immunity cap issue was made.
Brutal Murders
From the age of 6, John W. Ward -- a quadriplegic with cerebral palsy -- lived with his grandmother in the first-floor apartment of his parents' three-family Dorchester home.
When bathing and clothing her wheelchair-bound grandson became too strenuous for the grandmother, 77-year-old Alba Pellegrini, the family contacted the Visiting Nurse Association of Boston to retain a home health aide to assist her.
The VNA, as was its policy, turned the job over to one of its subcontractors, Trusted Health Resources, Inc.
In mid-August 1991, Trusted Health hired Jesse L. Rogers to care for 32-year-old Ward and his grandmother, only to replace the Roxbury man with other health aides a week later when he failed to show up for appointments.
On Sept. 10, Rogers wearing his Trusted Health photo identification badge suddenly reappeared at the Ward household under the guise of providing the handicapped man physical therapy. Once inside the Peverell Street apartment, Rogers brutally murdered Ward and Pellegrini.
"One of the last injuries [Ward] suffered was when Jesse Rogers took a blunt knife, stood behind him and tried to saw his head," Lynch recounts. "But because the knife was blunt, he couldn't cut through cleanly and end John Ward's life quickly."
Charged with the killings one year later, Rogers pleaded guilty to two counts of second-degree murder in 1994 and is currently serving a life sentence in state prison.
Lynch contends that Ward and his grandmother would still be alive today if Trusted Health had conducted a simple background check on Rogers.
For starters, he says, the agency would have found that Rogers' job application listed phony employment and education information.
"He said he went to Northeastern University for two years [but] he never went to Northeastern," notes Lynch. "He said he worked for the Registry of Motor Vehicles [but] he never worked for the Registry of Motor Vehicles. A simple phone call would have revealed this."
The agency also could easily have discovered that Rogers had six prior convictions for theft-related crimes, Lynch says, calling such information "readily available."
And finally, had Trusted Health checked Rogers' references, it would have learned that a former employer Uphams Corner Health Committee, Inc. had experienced many problems with the aide, whom they eventually fired amid allegations that he had physically abused one elderly client and stolen money from others, according to Lynch.
"I was horrified that they didn't do something as simple as a criminal background check," states Lynch, whose clients John P. Ward and Sylvia Jones (the parents of John W. Ward) sued Trusted Health, the Boston VNA and Uphams Corner to send "a message" to the home-health-care industry.
Red Flags
Describing Ward as "a very hard-fought case," Lynch says the biggest hurdle he faced during the nearly three-week trial was having to depend on the other side's well-prepared witnesses for much of his evidence.
"In my opinion that's a nightmare for a plaintiffs' attorney," he notes. "As a plaintiff, you want to be able to put on your own case, using your own people or disinterested third-party witnesses. Not in this case, so that was tough."
In cross-examining the first of the defense witnesses, Lynch says he relied on the "red-flag technique" to force the witness to admit that certain events should have signalled warning signs to those in charge.
"Whenever I got him to admit another red flag, I'd say, 'Well, how many red flags do we have now?' When I got up to three I figured that was enough," says Lynch. "And then I got him to admit that a criminal background check was good practice in 1991."
To Lynch's disappointment, the four remaining defense experts were never called to the stand.
When the defense presented evidence that the standard of care in the home-health-care industry in 1991 was not to conduct criminal background checks, Lynch countered by showing that telephone, gas and electric companies among others have all been conducting such checks since the early 1980s.
Another liability issue in the case was whether Trusted Health was an independent contractor, as the VNA contended, or an agent of the VNA, as Lynch argued and with which the judge ultimately concurred.
"The issue was could the VNA have required Trusted to perform criminal background checks," Lynch explains, "and in fact they could have."
The defense also focused heavily on the issue of proximate cause since no one had witnessed Rogers breaking into the Dorchester home a few weeks after he was taken off the Ward case, according to Lynch, who had to prove to the jury that Trusted Health and the Boston VNA had created a relationship of trust between Ward and Rogers.
"As far as John Ward was concerned, Jesse Rogers was safe to enter his household," Lynch states. "[Rogers] simply didn't show up for work a couple of times. Having created this relationship, they had a duty to warn. They should have never hired him in the first place, but having hired him and [having] put him in this position of trust, they should have warned the Wards that this man was dangerous and should not enter their household."
When the defendants further argued that, because Rogers' prior convictions were for larceny-related crimes, it was unforeseeable that he would commit murder, Lynch challenged that reasoning.
"You don't look at Jesse Rogers, you look at your hiring criteria," he says. "And if you're not going to do criminal background checks, then people with all kinds of criminal backgrounds will be hired, including, I'm sorry to say, convicted murderers."
Attempts by the defense to criticize Ward's divorced parents for allowing him to live with his grandmother backfired as well, remembers Lynch, who notes that a couple of single mothers on the jury may have empathized with the family's situation.
But in the end, it was perhaps the decedent himself who proved most compelling, Lynch suggests.
Despite arguments by the defense about "the value" of somebody who is a quadriplegic, "you had a person here who was bigger than life when it came to his people skills," Lynch says of Ward, who with the assistance of the local phone company placed so many telephone calls over the years that he was on a first-name basis with most of the operators.
"He had a real joy of living that was infectious. And I think that's what influenced the jury more than anything," says Lynch.
Mission Accomplished
On Feb. 12, the first of two juries empaneled in the bifurcated case found that, of the defendants, only Trusted Health caused Ward's death.
Specifically, the liability jury found Trusted Health was grossly negligent and that the negligence led to Ward's death. The Boston VNA was found negligent but the jury concluded that the VNA's negligence did not cause Ward's death. Uphams Corner was found not negligent.
While ruling that the VNA could be vicariously liable for any judgment against Trusted Health, Superior Court Judge Martha B. Sosman also applied the state's $20,000 charitable immunity cap to the VNA.
On Feb. 25, the damages jury came back with a verdict of $26.5 million against Trusted Health, awarding Ward's parents $8.5 million in compensatory damages and $18 million in punitive damages. Trusted Health declared bankruptcy the day after the verdict.
After the damages phase, Lynch threatened to appeal Sosman's charitable immunity cap ruling, arguing that the VNA was subcontracting its work out to Trusted Health a for-profit company and "taking a cut" in the process.
The day before Sosman was scheduled to decide whether the two agencies had violated Chapter 93A "the most powerful way of getting around charitable immunities," according to Lynch the plaintiffs successfully negotiated a settlement for an undisclosed amount with the VNA.
"At that point, the defendants were looking at a high-low of $20,000 to $26.5 million plus interest, and obviously we were looking at collectibility issues, so reasonable minds prevailed," Lynch notes.
Trusted Health, meanwhile, had brought a third-party action against its insurance carrier for denying coverage. The insurance company successfully moved for summary judgment early on in the case. Lynch says he reargued the issue after trial and was able to get the summary judgment ruling reversed.
Lynch says he is currently waiting for the court to decide if Trusted Health's insurance carrier is responsible for coverage, and if so, whether it must cover the whole verdict or only the policy limit of $1 million.
The case must also wind its way through the U.S. Bankruptcy Court before the file on Ward is finally closed.
Regardless of what happens next, Lynch says he and his clients accomplished their original objective.
"I've had many people come up to me and say they know somebody on a board of directors of some health-care company, and that after the verdict was reported they reviewed their hiring criteria. I think it sent a very, very sound message to a number of people."
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February 8, 1999
