Tuesday, July 22, 2014: Daily Report

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$2M Awarded After Disabled Man Dies in Pool

Greg Land, Daily Report
July 22, 2014

Andrew Goldner (left) Michael Goldberg represented the plaintiff, arguing the man could have been saved if his seizure had been noticed.

A Fulton County jury took barely over an hour to award $2 million to the mother of a mentally handicapped man who died after collapsing in a pool at an assisted living facility.

Attorneys in the case said a confidential high-low agreement had been reached before the trial, so there will be no appeal.

Fried Rogers Goldberg partner Michael Goldberg, who represented the plaintiff along with Atlanta solo Andrew Goldner, said a key issue in the case was whether Hunter Fellers, 31, had a heart attack and died as he went under water or experienced a seizure that sent him to the bottom of the pool, where he subsequently drowned.

“Our theory was that he had a seizure and went under, and nobody noticed,” said Goldberg, noting that Fellers had a history of seizures. “We said he could have been saved if somebody’d pulled him out.”

The defense argued that Fellers “was dead before he hit the water,” Goldberg said.

Matthew Coles of Lawrenceville’s Coles Barton, who defended the case with partner Thomas Barton, said expert testimony supported his clients but speculated that a video of the event was too much for jurors to overcome.

“We thought the medical evidence was beyond dispute that he had a massive coronary and didn’t drown,” said Coles. “I think the jury was simply overwhelmed by the video of the tragedy and the magnitude of the event.”

The defense was funded by a special non-profit insurer, the Alliance of Nonprofits for Insurance Risk Retention Group, Goldberg said.

The accident happened in June 2012 at Just People Village, an assisted living apartment complex for adults with mental disabilities in Lilburn “designed to help high-functioning, independent-living people integrate back into outside life,” Goldberg said.

Fellers had a history of developmental disorders and periodic seizures and had been living at the complex for seven years, according to court filings.

Just People was hosting a pool party the day of the incident, Goldberg said, and in addition to 40 residents other mentally handicapped people had been brought in to attend. “They didn’t have a lifeguard; they’d never had one,” said Goldberg. “There were five or six staffers assigned to the area, but no one was assigned to watch the pool.” Fellers was in the pool with nine other people, Goldberg said. “In the video, he kind of jerks, turns around twice, goes under water, has convulsions for four or five seconds, then goes limp,” said Goldberg. “The other mentally handicapped people don’t realize he’s not coming up, and he’s under water for six minutes.”

The pool was not deep – 4 feet, according to defense filings, although Goldberg said he thought it was 5 feet. In any case, he said, Fellers stood 6 feet, 4 inches tall and could have held his head above water if he had been able to stand.

In January 2013, Goldberg and Goldner filed suit against Just People Inc. on behalf of Fellers’ mother and estate administrator, Mary Fellers. A second defendant, Beckel Inc., an affiliate of Just People that owns the apartments, was added later. Fellers’ mother asserted claims for premises liability and negligence, arguing that it was dangerous to allow someone with mental disabilities, who suffers periodic seizures, to swim in a pool without adequate monitoring or supervision.

According to defense pleadings, Fellers “had the mental capacity of a teenager,” was familiar with the pool and its “swim at your own risk” policy and was considered a good swimmer by his family.

There was never any mediation in the case, Goldberg said. “For whatever reason, they felt pretty confident,” said Goldberg. “They sent over an offer of judgment for 50,000; we countered with a $1 million offer of judgment.”

“Their first offer was to put up a plaque for Hunter at the facility,” Goldberg said. “I told them I didn’t think my client wanted a plaque at the facility he died at.” Trial began July 7 before Fulton Count State Court Judge Patsy Porter, with the cause of Fellers’ death and the lack of supervision at the pool being the central issues, Goldberg said. The Fulton County Medical Examiner had conducted an autopsy that did not find typical signs of drowning: hyperinflated lungs, water in the sinuses and stomach and foam in the lungs, Goldberg said. “However,” he said, “everyone had to admit that there are times you drown without these signs. He did have an enlarged heart, which means he was at risk for dysrhythmia—[the defense] tried to say it’s like somebody collapsing on a basketball court.”

Goldberg said Michael Heninger, the Fulton County medical examiner, placed the cause of death as idiopathic seizure with submersion in shallow water.

“Basically his testimony was that it was not a classic drowning but that being under water for six minutes did play some role in his death,” Goldberg said. Fellers’ lungs were heavier than normal which, according to a video of his testimony, Heninger said could be attributed to his submersion.

The plaintiff also put up Jerome Modell, a Gainesville, Fla., anesthesiologist who has “written more articles on drowning than anybody in the world,” Goldberg said. “He said all the symptoms pointed to drowning.”

The defense called Georgia Bureau of Investigation Chief Medical Examiner Kris Sperry, Goldberg said. “His point was that it was cardiac dysrhythmia; because there were no classic signs of drowning, it was more likely the heart that killed him,” he said. The trial, scheduled for five days, wrapped up after two-and-a-half days. “In closing, I gave [the jury] an idea what I thought the full value of a 31-year-old man’s life would normally be,” Goldberg said, estimating that at $4 million to $8 million, “then challenged them to decide whether it should be less because a person was mentally handicapped.”

In an hour and five minutes, the jury returned with a verdict of $2 million, plus $22,304 in funeral expenses.

Goldberg hailed Porter—and the jury—for moving the trial so quickly.

“Judge Porter ran the most efficient trial I’ve ever seen,” he said. “She had us in from 8 to 6 every day, and the jurors all showed up on time.”

Goldberg said jurors told him after the verdict that they felt the value of Fellers’ life was not less than that of a nonhandicapped man, but they didn’t want to award so much that it would jeopardize Just People’s survival.

“The defendants are basically engaged in a charitable enterprise, and the jury felt they were trying to help a class of people that do need help. They didn’t want to award so much that they’d put them out of business.”

Barton, the defense lawyer, said he was intrigued by the jurors’ reaction to the case.

“Most of them were completely overcome and impressed by the organization and the work they do; they were interested in volunteering and donating money to the organization,” he said. “They were shocked when we told them about some of the things we were prevented from saying at trial.”

Porter had not allowed Just People to be identified as a nonprofit, he said, nor had the defense been allowed to mention that Fellers’ father—who is deceased—had been a Just People board member, he said.

“A huge part of the case involved the policies and procedures of the facility—all decisions in which the young man’s father either participated or was aware of,” Barton said. “This was obviously a tragic event for all concerned,” he said. “Hunter lived there for years, he was part of the Just People family, and he considered them family as well. It was very difficult for the employees to relive the events of that day; he was their friend.”

The case is Fellers v. Just People Inc., No. 13EV016600.

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