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It's up to jury to put price on pain

Second of two parts

The six agreed a nursing home should pay. But how much? $1-million, $3-million . . . or more?

In many respects, the case was run of the mill. Nothing dramatic happened to Charlie McCorkle during his 11-month stay at Colonial Care Center, a nursing home in Kenneth City. The facts centered on basic, hands-on care.

Why did his weight drop so sharply? How did the tangerine-sized bedsore develop on his buttock, a wound that tunneled to the bone and required surgery?

McCorkle's maternal aunt, 87-year-old Marie Weldon, had removed him from the home. He died a few months later, at age 65, and she sued on his behalf.

Now, after slogging through 13 days of trial, the six jurors retired behind closed doors to consider their verdict, hacking with coughs and sniffles that had spread through their ranks.

It took them just minutes to decide the nursing home should pay. That much was easy. Still, they remained in the jury room, arguing through an afternoon, through a full day and well into a third.

How high should they go?

During jury selection last September, 38-year-old Shirley Perry had told the lawyers that she had taken in her 72-year-old mother, who had developed a bedsore on her heel.

That sounded promising to lawyers for the nursing home: In a case that involved a man who developed a gangrenous bedsore, they figured Perry would be receptive to their argument that bedsores don't necessarily result from bad care.

But in the jury room, she backfired on the defense. Perry thought of her mother all right: She envisioned her wasting away in a nursing home.

"I can't even imagine her being in a situation like that, where someone wouldn't feed her."

Nursing home attorney Dale Sisco had argued that end-stage Alzheimer's disease had caused McCorkle's decline. Perry wasn't buying it. Neither was Jo Ann Brogan, a 68-year-old manufacturing worker.

"That struck me as something they wanted you to pretend to get you off the trail of what was really going on," Brogan says. "You can't tell me these bedsores go to the bone without somebody doing something."

Brogan had mentioned during jury selection that she was too squeamish to look at graphic bedsore photographs. Sisco accepted her as a juror, hoping the other side would anger Brogan by doing what lawyers for the patients almost always do in cases like this: Show photos -- the more gruesome, the better.

But having heard Brogan's reservations, McCorkle's attorneys decided not to risk alienating her. They withheld the photos -- and now had a juror who was anything but squeamish about how she felt.

"You have to take care of these people. You just can't pull their money in and say to hell with them," she says. "In all honesty, if they're going to treat people this way, they should be bankrupt. If they can't take care of people and give them some grace or style in their later years, they shouldn't be in damn business."

Perry and Brogan's negative view of Colonial was shaped mostly by the testimony of a half-dozen former workers who said they were routinely overworked, sometimes caring for as many as 40 patients at once.

McCorkle required extensive help with feeding, but aides said they sometimes couldn't spare the time. Sometimes they would find him sitting in dried waste because aides from previous shifts hadn't cleaned him.

Under cross-examination, aides acknowledged they had been fired or called in sick a lot. Brogan and Perry say that might have mattered if only one or two disgruntled aides had testified. But not one after another after another.

The jurors say they kept waiting for the nursing home's lawyers to document that Colonial had hired enough staff to satisfy Florida's meager minimum requirement of one aide for 14 residents. Payroll records, time cards, schedules ... anything.

It never came.

In many trials, plaintiff's lawyers would have kept Christopher Bivins off the jury at all costs. For 25 years, he had worked as an operating room assistant for doctors doing cardiac surgery. Medical folks traditionally detest lawyers who sue.

But McCorkle's attorneys, Bennie Lazzara and Brian Thompson, figured Colonial's sloppy record-keeping would offend Bivins' professional sensibility.

More than one-third of McCorkle's meal charts were blank. Doctors ordered medicine and the dietitian suggested food supplements, but the charts sometimes couldn't verify that McCorkle got them. Aides testified they were sometimes too busy giving care to finish the charts.

Turns out, the lawyers read Bivins perfectly.

"Poor documentation was the most critical of all," Bivins recalls. "You just have to have that done and they didn't do a good job with that."

The lawyers for the nursing home suggested that McCorkle often ate during extensive therapy sessions -- meals that wouldn't be listed on his regular meal chart. So the jurors plowed through nursing and therapy notes, trying to find documents that might list the missing meals.

"We tried to find any evidence that would substantiate the defense's case," says Perry, the forewoman, "but there wasn't enough there. . . . I think they knew that all along."

In the end, the jury identified personally with McCorkle, who everyone called Smiley, a man who could not speak, a man who would eat his meals -- if only someone could find the time to feed him.

"It's kind of sad. I would have liked to have known Charlie," Perry says. "It kind of makes you feel like you could be a rescuer in the nursing home and bust in and take them all out and say, "Let me take care of you.'

"Most of us were leaning toward teaching these guys a lesson. Just because you have stockholders to please doesn't mean you can compromise the health of your patients."

The big debate was establishing a dollar value. What was McCorkle's suffering worth?

The jury would have appreciated some perspective. They wanted to know what constitutes a big verdict. But neither the judge nor the law offered any guidance. They were on their own.

"We were in there as green as green could be," Perry says.

As they hashed it out, a battle line emerged.

Brogan, the squeamish one, wanted to sock the nursing home, and pulled the number $40-million out of the air. "The more I listened, the more upset I got. I felt this man was like somebody I knew."

But Harold Lee Jr., a 33-year-old operations supervisor at Franklin Templeton Fund, kept the lid on.

During jury selection, Lazzara and Thompson had worried about Lee. In one of the frequent mock trials at their law offices, a young business executive had held firm against awarding a really big verdict. But in McCorkle's case, other potential jurors worried the lawyers more than Lee, so they left him on.

Sure enough, as the jury struggled with how much to award, it was Lee who urged moderation. The other jurors "did not understand the value of money," Lee says, declining to say more.

Brogan says Lee initially suggested $1-million to compensate for McCorkle's medical bills and pain and suffering. Brogan was livid. Perry and others finally forged a compromise at $2.9-million, telling Brogan that they would pile on more the next day, when they came back to decide punitive damages.

The next day, Lee suggested $3-million for punitives. Tempers flared.

"It was pretty hot and heavy," Perry says. "People were standing up and putting their hands on the table and leaning in and looking at each other. It was like Tijuana, bargaining back and forth.

"We were basically arguing with him to try to get something for the plaintiff. We didn't want to go through a mistrial."

About halfway between Lee's $3-million and Brogan's $40-million, the jury forged an agreement: $17-million in punitive damages. Adding the compensatory damages, the total rounded off to $20-million -- the largest nursing home verdict in Florida history.

Weldon's lawyers congratulated her, but the case was far from over. The lawyers for the nursing home went back to work, searching for something, anything, to get the verdict overturned.

They started with a more thorough background investigation of McCorkle, going back to his old home state of Illinois. A private detective hit pay dirt -- an adoption certificate for Richard Charles McCorkle.

Charlie McCorkle had a son.

In the late 1960s, McCorkle had married a woman with a toddler. He adopted the boy in 1970, the year before the mother died. McCorkle raised him through high school. The son is 37 now, living in Atlanta, a truck driver like his dad.

Why did this matter? Because Marie Weldon had filed the lawsuit on her nephew's behalf. If she knew about the adopted son, it might constitute fraud to hold herself out as the nearest relative, the person who would receive the jury's damage award.

A different plaintiff might have made a huge difference in how the case played out. The jury had awarded $20-million to a caring, 87-year-old aunt who kept in close contact with her nephew. Would they have awarded as much to a 37-year-old who hadn't seen his father in 13 years? Would they have been so generous to someone the defense could have portrayed as an opportunist looking to grab himself an easy chunk of money from a nursing home that had tried its best to care for a man dying of Alzheimer's?

Two months after the verdict, nursing home attorney Dale Sisco and a private detective paid Richard McCorkle a visit in Atlanta. They approached him gingerly. They needed information that would help them prove that Weldon had known he was an adopted son. But if he discovered that helping them might get the verdict set aside and cost him $20-million, he might be . . . well . . . less than cooperative.

They told him they needed to discuss matters involving his father's estate. Attorney-client privilege prevented them from revealing too much detail, they said. They promised to fill him in later.

Yes, Richard McCorkle told them, he remembered his great-aunt Marie Weldon, who lives in Redington Beach. He had lived for a time in St. Petersburg with his grandmother, who was Weldon's sister. He had attended numerous family get-togethers.

He and his father had a falling out 13 years ago, and they hadn't spoken since. He didn't even know his father had moved from Atlanta and died, much less anything about alleged neglect in a Florida nursing home.

Sisco filed his motion, accusing Weldon of fraud.

Now it was Lazzara's turn to fly to Atlanta. He secured an affidavit from Richard McCorkle, swearing that he never talked to Weldon about being a legally adopted son. Furthermore, he said, his dad never mentioned it.

Weldon was put under oath. She acknowledged that she knew about Richard McCorkle but swore she never knew he was adopted. She said she and other family members assumed that Charles McCorkle had simply taken a motherless boy under his wing.

Denying the nursing home's request for a new trial, Pinellas Circuit Judge Frank Quesada ruled that Weldon had not committed fraud -- she had made an unintentional mistake. The verdict stood.

But now somebody else would get the money. Weldon had gone through two years of hearings and depositions and finally a trial, but she was out. Richard McCorkle was in.

The nursing home's lawyers had a few maneuvers left. They asked for a new trial, alleging bias by a juror who had failed to disclose his involvement in three lawsuits. They also asked Quesada to reduce the award. Florida law almost always limits punitive damages to three times the value of compensatory damages. Chances were good the judge would apply that formula and reduce the total award to $11.6-million or less.

McCorkle's attorneys, meanwhile, turned up the heat by filing a lawsuit against Toronto-based Extendicare Inc., the corporate parent of the companies that owned Colonial Care Center. That lawsuit sought even more damages on McCorkle's behalf.

With both sides facing disquieting uncertainty, in January they negotiated a settlement to all claims. The amount is confidential -- but Extendicare Inc. recently told its stockholders that it was setting aside $9-million to settle the McCorkle case.

How much of it goes to the lawyers? Wilkes wouldn't say, but his firm's standard 40 percent cut would generate between $3-million and $4-million.

Weldon says it doesn't bother her to cede the jury's millions to her newly discovered grand-nephew. She says she got what she wanted.

"The verdict will wake some of these nursing homes up and they will realize they have to take care of people. It's their responsibility."

Richard McCorkle remains in Atlanta. He doesn't want to talk about his recent windfall.

Sisco wistfully recalls cases with unsympathetic plaintiffs.

"If I knew about (the son) in the first place, it would have played out differently," he says. "I could have (questioned) him about why he didn't visit."

Would a less sympathetic plaintiff have made a difference? Reading the comments of jury forewoman Shirley Perry, it's hard to tell:

"The son gets it? That's a bummer. I really believe the old lady would have given the money to some sort of organization who helps people. Oh well, It wasn't about them. It was about Charlie."