Gordon & Partners litigator Scott Fischer successfully represented the family of Kathleen Menard, a Port St. Lucie woman who died in September 2017, in a wrongful death lawsuit against the assisted-living facility that had been responsible for her care.

A St. Lucie Circuit Court jury returned a $6 million verdict against Port St. Lucie Retirement Investors for Menard's surviving children, Joseph Menard and Maria Gryner, in May 2019.

The defendant owns and operates The Harbor Place at Port St. Lucie, the center where Kathleen Menard resided until a July 2017 accident which put her in the hospital and, according to the plaintiffs, led to her death two months later.

Fischer, who is based in Palm Beach Gardens, said his clients' mother frequently sat outside on mornings to read her Bible. He said although Menard was 97 years old and only had mobility through her scooter, she felt secure through a pendant provided by the facility that allowed her to call for emergency assistance by pressing a button.

Menard, who resided at the center for nearly 10 years before her death, had previously suffered a tumble. Employees had told her to use the pendant for both indoor and outdoor falls, according to her attorney. But after falling on a July 2017 morning with a heat index of 100 degrees, Menard's use of the button proved futile.

"She ultimately went unconscious from the heat and nobody that worked there ever found her," Fischer said. It wasn't until four hours after Menard had fallen that she was discovered by a facility visitor who'd been walking her dog.

According to Fischer, Menard was found with the electronic safety device gripped tightly in her hand.

"Her temperature was about 105 degrees. They were able to save her and she became conscious again," the attorney said. However, Fischer added employees with the Harbor Place at Port St. Lucie waited about 40 minutes to dial 911 once Menard was brought inside, and noted she endured significant burns from the ordeal and began to exhibit symptoms akin to that of a dementia patient once she was resuscitated by doctors. Fischer said Menard underwent several surgeries to remove damaged tissue from her body following the accident.

Fischer said Menard's burns made it difficult for her to walk, exacerbating her deterioration and leading to her death two months after the incident. He said the medical examiner linked Menard's death to the heat stroke she had suffered.

Menard's estate brought a lawsuit against the owners and operators of the parent company in January 2018, arguing that their negligence and wrongful conduct caused her death.

The plaintiffs argued the center's staff had been misled and were negligently trained regarding the abilities of the pendant used by Menard. They claimed that although the defendants maintained otherwise, the devices did not work in the area where Menard had fallen, could not function outside of the building, and therefore could not signal staff.

Fischer also pointed jurors to Port St. Lucie Retirement Investors' finances, saying that for purported budgetary reasons the company had refused to install a security camera system which might have spotted Menard.

"For a small amount of money this company could have put a number of surveillance measures into place," Fischer said, pointing to a roughly $30,000 camera system the defendants had declined.

Both sides called a number of expert witnesses to the stand to testify about whether Menard's death was traceable to the fall and injuries she suffered.

Fischer claimed the defense "had an excuse for everything" over the course of the three-week trial.

"They said that everything was resolved at the hospital, and her death two months later was just from old age and not from this whole event," the attorney said.

Port St. Lucie Retirement Investors received legal representation from attorneys Kirsten Ullman and John Bringardner with Ullman Bursa Law in Tampa. It contended many of the ailments exhibited by Menard had alternative explanations. This included the contention she suffered from an untreated urinary tract infection, and that the burn marks were the result of her refusal to bathe.

"They had an unlimited budget to fight the case," Fischer said, adding the defense brought in witnesses from across the U.S. to testify. "In the end the jury saw right through it and the more excuses they made, the worse it got for them."

Ultimately, the jury awarded $1 million to each of Menard's children for pain and suffering, in addition to levying $4 million in punitive damages against the defendant. Following a posttrial motion, the court also awarded $253,512.79 to the plaintiffs for court costs.

One of the defendant's attorneys, Bringardner, told the Daily Business Review via email that an appeal had been filed.

"Harbor Place at Port St. Lucie strongly disagrees with the decision," the Ullman Bursa Law partner said. "During the course of this trial, a number of major legal errors occurred and there are significant appellate issues."

Bringardner declined to comment further, citing the pending litigation.

But Fischer said he's confident his clients will prevail. Regardless of what comes next, Fischer said he's proud of the lawsuit's outcome at the trial level, as it proved to be one of the most difficult of his career.

"The case was incredibly hard-fought," he said, asserting the defense filed dozens of motions opposing the plaintiffs at each juncture of the suit. "Their mentality was to fight on everything, which is what made everything so challenging."

Given the arduous nature of the litigation, the attorney said it proved particularly gratifying to prevail for his clients.

"The family lived not only through the event and the death of their mother, but the war the litigation was," Fischer said. "They came to every court hearing. … They went through the whole process of the litigation. To see it through to the end was incredibly rewarding to the family and myself as well."

Case: Estate of Kathleen Menard v. Port St. Lucie Retirement Investors LLC d/b/a The Harbor Place at Port St. Lucie

Case no: 562018CA000152AXXXHC

Description: Assisted Living Facility Negligence/Wrongful Death

Filing Date: Jan. 25, 2018

Verdict Date: May 10, 2019

Judge: J. David Langford

Plaintiffs attorneys: Scott Mitchell Fischer and Robert E. Gordon, Gordon & Partners, Palm Beach Gardens

Defense attorneys: Kirsten Ullman and John Bringardner, Ullman Bursa Law, Tampa