Elder dies in memory care facility after repeatedly receiving sedative; $42.5M. Sacramento County.


Over-sedation is blamed when elderly plaintiff chokes on food, dies.

The Case

  • Case Name: Barbara Lovenstein, et al. v. Eskaton Fountainwood Lodge, et al.
  • Court and Case Number: Sacramento County Superior Court / 34-2012-00135467
  • Date of Verdict or Judgment: Thursday, April 25, 2019
  • Date Action was Filed: Tuesday, November 13, 2012
  • Type of Case: Elder Abuse, Fraud
  • Judge or Arbitrator(s): Hon. Eugene L. Balonon
  • Plaintiffs:
    Barbara Lovenstein, by and through her successor-in-interest Robin Hutcheson
    Jean Charles
  • Defendants:
    Eskaton FountainWood Lodge
    Eskaton Properties Inc.
  • Type of Result: Jury Verdict

The Result

  • Gross Verdict or Award: $42,500,000
  • Net Verdict or Award: $42,500,000
  • Award as to each Defendant:

    $42,500,000 joint and several as to all defendants.

    Defense verdict on negligent infliction of emotional distress claim.

  • Non-Economic Damages:


  • Punitive Damages:


  • Trial or Arbitration Time: 8 weeks.
  • Jury Deliberation Time: 1 1/2 days for liability phase. 1 hour for punitive damages phase.
  • Post Trial Motions & Post-Verdict Settlements: Ruling is pending on defense motion to conform the compensatory verdict to the MICRA cap of $250,000.

The Attorneys

  • Attorney for the Plaintiff:

    Law Office of Edward Dudensing by Edward P. Dudensing, Sacramento.

    Nursing Home & Elder Abuse Law Center by Jay P. Renneisen, Walnut Creek.

    Law Office of Thomas G.C. McLaughlin by Thomas G.C. McLaughlin, Sacramento.

  • Attorney for the Defendant:

    Beach, Cowdrey Jenkins, LLP by Thomas E. Beach and Sean D. Cowdrey, Oxnard.

The Experts

  • Plaintiff’s Medical Expert(s):

    Kathryn Locatell, M.D., geriatrics, Cameron Park.

    Christopher Stephenson, M.D., physical medicine and rehabilitation, Sacramento.

  • Defendant's Medical Expert(s):

    Joshua H. Rassen, M.D., geriatrics, San Francisco.

  • Plaintiff's Technical Expert(s):

    Ronald Pomares, CPA, accounting, Sacramento.

Facts and Background

  • Facts and Background:

    Plaintiff, Barbara Lovenstein, was a 77-year-old resident from February 24, 2012 to March 22, 2012 in the Memory Care Unit at Eskaton FountainWood Lodge in Sacramento. Eskaton FountainWood Lodge is a residential care facility for the elderly, also referred to as an assisted living facility. Plaintiff, by and through her successor-in-interest Robin Hutcheson, and her sister plaintiff Jean Charles, filed suit for elder abuse and negligent infliction of emotional distress against Eskaton FountainWood Lodge, Eskaton Properties Inc., and Eskaton in relation to Ms. Lovenstein's death while living at Eskaton FountainWood Lodge.

  • Plaintiff's Contentions:

    Plaintiffs contended that the facility repeatedly administered Ativan, a sedative, to Ms. Lovenstein against her doctor's instructions in order to chemically restrain her during her short stay at the facility and that this over-medication resulted in Ms. Lovenstein choking on food and tragically dying from aspiration pneumonia and severe dysphagia. Plaintiffs maintained that the abuse and neglect of Ms. Lovenstein was caused by understaffing of the facility and a lack of training and supervision of staff. Plaintiffs further contended that corporate officers were aware of these and other systemic failures at the facility but failed to do anything about it. Plaintiffs sought damages for elder abuse, fraud, and plaintiff Jean Charles sought damages for negligent infliction of emotional distress.

  • Defendant's Contentions:

    Defendants denied all plaintiffs' contentions as to liability and causation.

Injuries and Other Damages

  • Physical Injuries claimed by Plaintiff:

    Chemical restraint, choking, aspiration pneumonia, severe dysphagia and death.

Special Damages

  • Special Damages Claimed - Past Medical: None.
  • Special Damages Claimed - Future Medical: None.
  • Special Damages Claimed - Past Lost Earnings: None.
  • Special Damages Claimed - Future Lost Earnings: None.

Demands and Offers

  • Defendant §998 Offer: $275,000

Additional Notes

The jury found the corporate affiliates, Eskaton Properties, Inc. and Eskaton, directly liable for the full amount of the verdict as well as under theories of joint venture, aider and abettor and co-conspirator liability. All of the defendants are IRS 501(c)(3) nonprofit corporations.