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October 2014

Gordon & Rees Multi-Office Team Wins Partial Summary Judgment, Settles Elder Abuse Case

On Sept. 24, a collaboration among Gordon & Rees’s Phoenix, San Diego, and Denver offices led to the resolution of a hard-fought, contentious matter involving elder abuse and wrongful death claims.

San Diego partner Linda Mullany turned to Phoenix senior counsel Molly Machold for local help defending an assisted living provider in the Phoenix matter. Mullany also received assistance with health care-specific discovery from Denver associate David M. Clarke, who also drafted the motion for partial summary judgment on the financial exploitation cause of action.  Six months later, after re-opening discovery at the plaintiffs’ request, Denver senior counsel Joshua G. Urquhart and Mullany responded to the plaintiffs’ opposition to that motion with a brief that was essentially adopted by the arbitrator in his decision granting their motion.  Once the plaintiffs’ demands related to the financial exploitation claim were dismissed from the case, Mullany quickly resolved the matter to the clients’ great satisfaction.

The plaintiffs’ action against the facility set forth claims for statutory elder abuse and wrongful death, and alleged physical abuse/neglect and financial exploitation under Arizona’s vulnerable adult statute.  The plaintiffs were represented by two law firms: one pursuing the physical neglect and wrongful-death claims, and the other asserting financial exploitation in violation of the statute. An early mediation did not resolve the case, as the plaintiffs’ never moved off their double-policy limits demand.  

The matter proceeded through binding arbitration.  In the financial exploitation claim, based upon a section of the statute with no case law on point, the plaintiffs claimed that they had paid for care, services, safety and security; the decedent did not receive the care, services, safety and services paid for; and the defendants used the elder decedent’s resources (the monthly rents paid) for their own gain at the expense of the elder, which constituted financial exploitation.  The plaintiffs brought a counter partial motion for summary judgment on this claim as well, seeking disgorgement of all monies paid in rents, general and special damages, a penalty of double the actual damages, attorney’s fees and costs.

The arbitrator granted the defendants’ motion and dismissed the financial exploitation claim, explaining that while the allegations may support a claim for negligence or wrongful death (which the defendants acknowledged, but contested the merits ), it was clear “there is no conceivable way such a scenario could support a financial exploitation claim.”   

With that claim dismissed, Mullany settled the remaining claims and the clients were extremely pleased with the result.

David M. Clarke
Linda H. Mullany