Georgia Verdicts

Plaintiff(s):

Mary Fellers (Female), 

Estate of Hunter Fellers (Male, 31 Years)

Plaintiff Attorney(s):

Michael L. Goldberg;
Fried Rogers Goldberg LLC;
Atlanta,
GA,
for
Mary Fellers, Estate of Hunter Fellers ■ Andrew E. Goldner;
Fried Rogers Goldberg LLC;
Atlanta,
GA,
for
Mary Fellers, Estate of Hunter Fellers

Plaintiff Expert(s):

Jerome Modell;
M.D.;
Drownings & Aquatic Injuries;
Gainesville,
FL called by
Michael L. Goldberg, Andrew E. Goldner ■ Michael Heninger;
M.D.;
Autopsies;
Atlanta,
GA called by
Michael L. Goldberg, Andrew E. Goldner

Defendant(s):

Beckel Inc., 

Just People Inc.

Defense Attorney(s):

Matthew S. Coles;
Coles Barton, LLP;
Lawrenceville,
GA,
for
Beckel Inc., Just People Inc. ■ Thomas M. Barton;
Coles Barton, LLP;
Lawrenceville,
GA,
for
Beckel Inc., Just People Inc.

Defendant Expert(s):

Kris Sperry;
Pathology;
Decatur,
GA called by
Matthew S. Coles, Thomas M. Barton

Insurer(s):

Alliance of Nonprofits for Insurance Risk Retention Group for both defendants

On June 26, 2012, plaintiff’s decedent Hunter Fellers, 31, a resident at an assisted living facility on account of his developmental disabilities, died in a swimming pool. The incident occurred at the Just People home during a party given for its residents and invited guests. Fellers’ mother, individually and as representative of her son’s estate, sued the facility for wrongful death. She alleged that the home’s negligence was the cause of Hunter’s death. Beckel Inc., which owns the residential complex, was also named in the lawsuit. The pivotal issue at trial was whether Fellers had a heart attack and died as he went under water, or whether he experienced a seizure that caused him to go to the bottom of the pool and drown. The plaintiff’s theory of the case was that Fellers, who had a history of seizures, experienced a seizure while in the four-foot deep swimming pool and slipped under the water unnoticed by the staff of the residential home. The incident occurred during a pool party hosted by the facility for its 40 residents and additional other mentally-handicapped people had been brought in to attend. Negligence was alleged for the defendants’ failure to have a lifeguard for the event and having only five staffers in the area of the pool, none of whom having been given the specific assignment to watch out for people in the pool. When Fellers slipped under the water, plaintiff asserted that none of the nine other swimmers, all with various degrees of diminished mental capacity, appreciated his distress, so no one came to his aid. At trial, the jury had the benefit of a videotape of the incident that showed Fellers making a sudden jerking motion before he turned around twice, slipped under the water and convulsed for five seconds before going limp. No one came to his aid and Fellers remained under water for six minutes. Plaintiff presented the videotaped testimony of the Fulton County Medical Examiner who conducted Fellers’ autopsy. The medical examiner did not find typical signs of drowning, such as hyper-inflated lungs, water in the sinuses and stomach, and foam in the lungs, but concluded that the cause of death was idiopathic seizure with submersion in shallow water. The medical examiner testified that, although many of the classic signs of drowning were absent, there are times when drowning occurs without these signs and the six minutes Fellers was submerged contributed to his death. It was also noted that, when Fellers’ lungs were weighed, they were heavier than normal, which the medical examiner attributed to submersion. Plaintiff’s counsel also called an anesthesiologist who is an expert on drowning deaths. That expert opined that Fellers exhibited all the symptoms of drowning. It was the defense contention that Fellers experienced a heart attack and was dead from cardiac arrest before collapsing to the bottom of the pool. The medical examiner made a finding of an enlarged heart and the defense argued that this would put Fellers at risk for dysrhythmia (an abnormal cardiac rhythm and often called arrhythmia) and consistent with the defense theory that the cause of death was a sudden and massive heart attack. The defense called the Georgia Bureau of Investigation Chief Medical Examiner as its expert as to the cause of death. That medical examiner pointed to the cardiac dysrhythmia and lack of the classic signs of drowning, concluding that it was more likely that Fellers died of cardiac arrest rather than drowning. The defense also disputed the contention that there was inadequate supervision, pointing to evidence that Fellers had the mental capacity of a teenager and was familiar with the pool and its swim-at-your-own-risk policy. Fellers was also considered a good swimmer by his family.

Fellers was dead when removed from the pool after six minutes of submersion. The cause of death was disputed by the parties. Fellers was survived by his mother and three adult siblings.

The jury found that defendants’ negligence was the cause of Fellers’ death and returned a damages award of $2 million, plus $22,304 in funeral expenses. Plaintiff’s counsel reports that jurors said they believed the value of Fellers’ life was not less than that of a nonhandicapped man, but they did not want to award so much that it would jeopardize the defendants’ survival and ability to provide a home for persons with mental disabilities. This was little solace to defense counsel who had argued strenuously that the charitable purpose and non-profit status of defendants should be evidential at trial, an argument rejected by the trial judge. However, there will be no appeal of that or any other issue because the recovery will be less than the amount awarded pursuant to a confidential high/low agreement entered into prior to the commencement of the trial.

Judge:

Patsy Y. Porter

Demand:

$1 million (offer of judgment)

Offer:

$50,000 (offer of judgment)

Trial Length:

3
 days

Trial Deliberations:

65
 minutes

Jury Vote:

12-0

This report is based on information that was provided by plaintiff’s and defense counsel.