FOR IMMEDIATE RELEASE

July 1, 2020

Contact:Eric W. Boyer, Esq.
Managing Partner
305.670.1101 Ext. 1023
Email: eboyer@qpwblaw.com

DISTRICT COURT DENIES PLAINTIFF’S CERTIFICATION OF A CLASS ACTION IN
ALLEGED NEGLIGENCE AND FRAUD CLAIMS AGAINST A SKILLED NURSING FACILITY

Class Action Complaint – Skilled Nursing Facility

Donald L. Miller, II

Donald L. Miller, II

J. Peter Cassidy, III

J. Peter Cassidy, III

LEXINGTON, Ky.J. Peter Cassidy, III, Julie C. Foster and Donald L. Miller, II, attorneys in the Lexington and  Louisville offices of Quintairos, Prieto, Wood & Boyer, P.A., defended a skilled nursing home facility in a class action complaint alleging negligence and fraud claims, obtaining a favorable ruling in virtually all of their arguments.

Carrie Johnson’s (Plaintiff) complaint alleged both an individual negligence claim regarding her care and treatment at Brookdale’s Lexington, Kentucky Richmond Place Skilled Nursing Facility and a class action claim on behalf of all Richmond Place residents admitted from January 1, 2014-March 31, 2018. Her class claims allege that Richmond Place administrators, at the behest of Brookdale and its corporate affiliates, intentionally inflated staffing numbers in CMS Form 671s in order to obtain higher Star Ratings on the CMS nursing home compare website.

When Plaintiff filed the Motion to Certify, the class claims remaining were fraud, unjust enrichment, and Kentucky Consumer Protection Act claims.

On July 1, 2020, Judge Danny Reeves, Chief Judge for the Federal District Court, Eastern District of Kentucky, denied Plaintiff’s Motion to Certify and dismissed all of Plaintiff’s class claims, holding that Plaintiff could not meet the Rule 23 (a) requirements for a class action of numerosity, commonality, typicality, or adequacy of representation. Nor could she meet the Rule 23(b)(3) requirements of predominance or superiority.

Judge Reeves held that because Plaintiff was required to establish reliance, an individualized inquiry as to each putative class member’s claim precluded her from establishing any of the Rule 23(a) factors.  Judge Reeves also held that required reliance also meant that Plaintiff proposed an improper “fail safe” class.

Because the Brookdale admissions agreement contains a binding arbitration provision, Judge Reeves also held that arbitration issues precluded commonality, typicality, adequacy of representation, or predominance/superiority. Johnson was not subject to the arbitration agreement because her husband signed the admissions agreement without any authority to bind her; an individualized inquiry on the arbitration issue would be required for every class member.

We expect Plaintiff to appeal to the Sixth Circuit, which is discretionary under Rule 23(f).

# # #

Peter Cassidy, III is a partner in the Lexington office of Quintairos, Prieto, Wood & Boyer, P.A.  His practice focuses on medical malpractice including the defense of nursing homes, assisted living facilities, and hospitals.  He regularly represents physicians and other professionals before their respective licensure boards. His practice also encompasses insurance defense, personal injury actions, and real estate related litigation. Mr. Cassidy received his law degree from the University of Kentucky College of Law. He is licensed to practice law in Kentucky and is admitted in the U.S. District Court for the Eastern and Western Districts of Kentucky and the U.S. Court of Appeals, Sixth Circuit.

Julie C. Foster is an attorney in the Louisville office of Quintairos, Prieto, Wood & Boyer, P.A. She focuses on long-term care defense, general liability, employment related claims and ERISA claims including discrimination, retaliation, harassment, wrongful termination, disability leave and accommodation including claims under the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA).  Ms. Foster’s experience also includes defending insurers in Personal Injury Protection (PIP) matters, property and casualty claims, automotive liability, premises liability and negligent security claims. She received her law degree from the University of Kentucky College of law and is licensed to practice law in Kentucky and West Virginia.

Donald L. Miller, II is the Managing Partner of the Louisville and Lexington offices. His practice has focused for many years on defending insurers in coverage and extra-contractual “bad faith” claims and includes defense of claims of long-term health care negligence, medical negligence, and legal malpractice, and long-term health care negligence for insurers and self-insured clients.  He has extensive appellate experience in both state and federal appellate courts and has first chaired many jury trials and appellate arguments.  He received his J.D. summa cum laude from the University of Louisville, Louis D. Brandeis School of Law. Mr. Miller is licensed to practice law in Kentucky and Indiana and is admitted in the U.S. District Court for the Eastern and Western Districts of Kentucky and U.S. District Court for the Northern and Southern Districts of Indiana; the Second, Sixth, and Seventh Circuits U.S. Court of Appeals and the U.S. Supreme Court.

About QPWB

Quintairos, Prieto, Wood & Boyer, P.A., is the largest minority and women owned law firm in the nation with more than 375 lawyers serving clients from 23 offices in the United States and abroad across a spectrum of industries in over 40 areas of practice. Our lawyers provide representation in litigation, business, real estate and governmental law.

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