MENA - Danny Thrailkill's law office is just across De Queen Street from the Polk County Courthouse. While he waited for the jury to return a verdict in the Margaretha Sauer case, he occasionally glanced over at the room on the second floor of the courthouse, where the jury was deliberating. Not that he learned anything from it. Couldn't see inside.

Waiting with Thrailkill were Brian Reddick of Little Rock and Bennie Lazzara of Tampa, Fla. The three represented the sons of the late Mrs. Sauer in a lawsuit against the Mena nursing home where she'd been a patient, and against the home's out-of-state corporate owners.

The jury was out less than three hours. After two, Lazzara announced, "They're on our time now." Were they ever.

On June 22, the jury returned a $78,425,000 verdict for the plaintiffs, the largest judgment in Arkansas history. Most people were surprised; many were shocked. Thrailkill, who has practiced law here for 20 years, said "There'd never been a seven-figure verdict here. I don't think there'd been a six. The big cases usually settle." But, he said, "If you'd heard the testimony, you'd understand the verdict." Maybe. The defense lawyers who heard the testimony called the verdict "shocking" and "grossly excessive" in a motion they filed for a new trial. The motion was denied. The case is now on appeal to the Arkansas Supreme Court.

The Sauer verdict resonates outside Polk County. "Tort reform" - the movement to shrink jury awards in civil suits - is a hot topic in Arkansas and nationally. It's especially hot with nursing home owners, who say that affordable liability insurance is vanishing, or has already vanished, because of big judgments. The nursing homes tried hard but unsuccessfully to win some sort of tort reform legislation from the Arkansas legislature early this year. And that was before the Sauer verdict. They'll try again in 2003, and they will view with even more alarm the activities of their nemesis, the Wilkes & McHugh law firm, which specializes in suing nursing homes. Reddick and Lazzara are with Wilkes and McHugh.

Paul E. Harrison of Little Rock, president of the Arkansas Trial Lawyers Association, and an opponent of tort reform, naturally, says "Does the Mena verdict fuel the tort reformers? Absolutely. It's become the polestar of the movement. But if it wasn't this one, it'd be another one."

Harrison says that even he was shocked by the Mena verdict, originally. "Then I read the opening and closing statements [by the lawyers in the case] and now I understand. I'm from Dierks myself [about an hour's drive from Mena] and I know that southwest Arkansas is not a hotbed of liberalism, it's not a place where corporations have to fear big judgments as a matter of course. I think the Supreme Court will uphold the verdict. We have to trust those 12 people in Polk County, just as we have to trust those 12 Pope County jurors who gave a plaintiff nothing [in a more recent Wilkes & McHugh case]."

Margaretha Sauer raised a family in Polk County, then attended college alongside her own sons. She earned an education degree and taught school in Missouri. After retirement, she came back to Mena. Only one of her sons, Lon, a school teacher and the administrator of her estate, lives in Polk County. The other three are scattered across the country. Two are medical doctors.

The afflictions of age came to Mrs. Sauer, as they do to all who live long. Suffering from Alzheimer's disease, among other ailments, she entered Rich Mountain Nursing and Rehabilitation Center here. She was 93 and had been in the nursing home over five years on July 19, 1998, when she was taken to a hospital where she died of dehydration. Evidence at the trial indicated that she'd had neither food nor liquid for 24-to-48 hours before she was rushed to the hospital. Mrs. Sauer's own physician testified for the defense that she died as a result of severe end-stage Alzheimer's, which had caused her to refuse to eat and drink. The defense said that nursing home administrators wanted to insert a feeding tube, but the family wanted to await the results of a test for cancer. The feeding tube eventually was inserted, but too late, according to the defense. Plaintiffs' witnesses testified that Mrs. Sauer could be coaxed to eat and drink if someone took the time to work with her.

The Sauers came to Thrailkill, who'd done legal work for the family before. He enlisted the aid of Reddick, who he knew had switched from defending nursing homes - as an attorney for Beverly Industries, a large nursing home chain - to suing them. Reddick brought in Lazzara from Florida.

The trial before Polk Circuit Judge Gayle Ford lasted nine days. Darren O'Quinn and David Couch of the Little Rock law firm of Dover & Dixon represented the defendants. Plaintiff's witnesses testified to understaffing, shortages of supplies, and complaints by residents, families and staff that had gone unanswered. Some of the witnesses were former employees of the nursing home. One was a former executive. There was testimony that state regulators had cited the home for insufficient staffing, and testimony about Mrs. Sauer's treatment specifically - about dehydration, malnutrition, bed sores and unexplained injuries. Much of the testimony was about conditions in the home generally. A good deal was said about elderly patients lying in their own waste. The plaintiff's lawyers hammered at the theme that corporate management in Tennessee and Pennsylvania (Diversicare and Advocat, respectively) had "put profits over people."

The defense called Mrs. Sauer's physician, a medical expert and a nurse expert to testify that the treatment given Mrs. Sauer was never inadequate and sometimes heroic. Employees of the nursing home refuted testimony about shortages of staff and supplies. The defense argued that Mrs. Sauer at 93 was in a "death trajectory" that led to her inevitable and unavoidable passing. Mention was made that Mrs. Sauer's family, including two physicians, had left her in the home for five and a half years, and didn't lodge a complaint until she died.

A jury of 7 women and 5 men decided the case. Lazzara was on-target in citing the rule that when a jury decides a suit lacks merit, it does so quickly. Most of the Sauer jury's deliberation was about how much to award, not whether. Of the jurors who'll talk, none is quite sure how such a large amount was agreed on, although one, who declined to be interviewed otherwise, said "It could have been worse. Some of 'em wanted to make it HUGE!" Rumor has it that a figure of $100 million was discussed.

With one exception, none of the jurors we talked to has second thoughts about the correctness of the verdict. Some jurors remained silent. ("It was too hard on me. I want to move on.") A few couldn't be reached. One died a couple of months after the trial.

Jury selection went quickly, incidentally. In Polk County, jury panels are pretty homogenous - white, Anglo-Saxon, working-class, for the most part.

Patricia Chamberlin is a housewife. Like most of the jurors, it was her first time to serve. "This was quite a rude awakening. Each day, at the end of the day, we were just totally emotionally and physically drained.

"We weren't out for the nursing home per se, we were out for the corporation. They needed to get their hand slapped. The corporation wouldn't furnish money and supplies or have adequate care. It doesn't seem to mean a hill of beans to them."

Dewayne Turpin is a farmer, a U.S. Forest Service employee and a Baptist preacher. "The primary reason for the verdict was the negligence of the corporation. The folks at the nursing home did the best they could with what they had." He said a few of his neighbors had talked about the verdict and they were generally supportive.

Linda Ruth Lance is a housewife. "We felt like a message should be sent to those who operate nursing homes that they should take care of the elderly and see that they're not mistreated. We felt a large verdict would get their attention. There was enough evidence put on that she had not been taken care of. She was paying money to be taken care of. I feel like we did what was the best thing to do."

The verdict was unanimous, but there was one who dissented briefly, and she still has doubts. This was Lorene Smalley, another housewife.

"I couldn't agree with either side whole-heartedly. I believe the nursing homes do need to pay higher wages and hire better help, and I know they don't sometimes . . . [But] I felt better toward the defense. I brought out a few things. The doctor who examined Mrs. Sauer couldn't say her death was caused by neglect. . . . Why make one family rich by giving them all this money? I spoke out, but I found out everyone else was for the family. Send a message to these big companies to give better wages and better care for the elderly - that's what they all said. I was really surprised to find that I was the only one going with the defense. It kind of threw me. They only needed nine votes anyway. That's what the foreman said. So it was like my opinion didn't matter. I said a few things, and then I let it go. If I had to do it again, I'd say a lot more. I feel like next time I would hold out. But it was tough."

(In Arkansas, only nine votes are needed in civil cases. The jury foreman, Rev. Billy K. Maxey, declined to be interviewed for this article.)

Of the 241 licensed nursing homes in Arkansas, 225 are members of the Arkansas Health Care Association. The organization held its fall convention at the Embassy Suites in Little Rock last month. On Nov. 14, the subject was nursing home litigation, and one of the speakers was Thomas M. Rockwell, an attorney in the Mobile law firm Alford, Clausen & McDonald. Rockwell has defended many nursing homes against the onslaughts of Wilkes & McHugh. He shows the crowd a slide of Jim Wilkes. "He's extremely able. He pioneered the nursing home frenzy in Florida, and it developed into an incredible opportunity for plaintiffs' lawyers. He says nursing homes are inherently evil and he'd love to put them out of business. But he offers no solution."

In the late '80 and early '90s, "the frenzy" moved to Alabama, Rockwell says, "but we had some good litigation legislation there to level the playing field. Now it's in Arkansas and you don't have the legislation. This is a battle of life and death and you guys are on the short end of the stick."

Rockwell knows his subject. He explains the reasons why, besides Jim Wilkes, and besides their own shortcomings, that nursing homes get sued. ("We recommend settle if you made a mistake.") For years, nursing homes were untouched by litigation, partly because "People understood that grandma's 87, she's going to die soon whatever we do. Now, we have unrealistic expectations. We're a spoiled society. People think you should be 99, still running in marathons, and die in your sleep. The truth is, nursing home patients go there to spend their few remaining years. Some families act surprised, as if they didn't know that." Another defense lawyer, Stuart Miller of the Mitchell Law Firm in Little Rock, adds "Plaintiffs expect 24-hour, one-on-one care. I think the plaintiffs' bar is making them believe that's what they should expect."

Plaintiffs' lawyers give nursing homes a bad image by promoting the notion that nursing homes are in the business of "warehousing" elderly patients, Rockwell said. Furthermore, "Nobody looks favorably on the details of what nursing homes do - wiping feces off mama. Nobody wants to think they'll end up that way." Low-paid employees with an ax to grind are eager to testify, Rockwell says: " 'They told me to falsify documents. Yeah, I got fired for stealing.' " Older workers are the best, Rockwell says. "They have a passion for it. Younger ones don't have that passion. They come and go."

"The body of paperwork virtually ensures that some portions will be incomplete or inaccurate," Rockwell says. "Poor charting lends itself to allegations of fraud. But just because it wasn't charted doesn't mean it wasn't done. If you have witnesses, you can overcome incomplete charts. Medication sheets are very dangerous. They can add seven figures to a judgment. If a sheet shows that medication was checked out but doesn't show that it was given, the plaintiff will say 'She was getting high with her buddies while the patient writhed in pain.' Graphic photos of patients? If you don't need 'em, don't take 'em. There is nothing you can do to overcome the jury's horror of that picture."

Rockwell recites the themes used by plaintiffs' lawyers: "Profits over people." "Short staff means tall profits." "The staff cares, but the company ties their hands. The staff needs you to help communicate with the company." "Long-term pattern of abuse and neglect." "Pattern of charging for services never provided."

To fight back effectively, nursing homes must share information and defense theories, Rockwell says. They must hire skilled, aggressive litigators. (The Wilkes firm hires former prosecutors and tries its cases as if the nursing homes were facing criminal charges, Rockwell says.) They must adopt rigorous risk management programs: "Make sure the paperwork is handled correctly and the proper procedures are followed. Teach your people not to leave themselves open. They're health-care providers, not lawyers."

And tort reform is needed, too, but Rockwell surprises his listeners when he tells them to forget about capping the amounts that juries can award. The AHCA supported caps in the legislative session earlier this year. "Americans don't like caps and won't accept them," Rockwell says. He tells a reporter later, "I don't really believe in caps myself. Mandating a cap ties the jury's hands in a way that's contrary to our judicial process."

Nor does Rockwell agree with complaints about the quality of jurors available. Miller tells the crowd that in a jury panel of 30 members, half may be people who want to serve so they'll get a juror check; "They'll have a third- or fourth-grade education. A lot of times, the case will come down to whether they like you. They won't understand the complicated issues." Rockwell responds, "The system does work, if you do your job properly. It would be great if all the jurors looked like us, but that's not the way it works."

What Rockwell proposes, what Alabama now has, is legislation that "restricts the evidence to allegations about the plaintiff's case. Evidence about another patient's injury doesn't get introduced unless it relates to the plaintiff. Plaintiffs should have to focus on malpractice, not on trying the nursing home as bad in itself. It's kind of like the defendant in a criminal case - the jury can't be told about allegations of other crimes." Without such restrictions, he says, "Plaintiffs run from medical issues. They don't want to talk about cause of death. They don't want to focus on the fact that the resident had terminal cancer. They want to focus on emotional issues." (Arkansas nursing homes proposed such restrictions to the legislature this year, but the legislature wouldn't go along with that idea either.)

During a break in the AHCA convention, the owner of a mom-and-pop nursing home tells a reporter that he's being sued, though not by the Wilkes firm. He says he'll never again accept a patient whose family includes a registered nurse or a licensed practical nurse. "They know just enough to be dangerous. And they're eaten up with guilt that they've put mama in a nursing home."

Randy Wyatt, executive director of the AHCA, says that "civil justice reform" will be a big issue again at the 2003 legislative session, a priority for the health care industry and for business owners. He hopes the Mena decision will lend impetus to the movement. "We've got a year to work on it." Among other legislation, the nursing homes will seek the same sort of protection for certain records that hospitals already have. "Not all hospital records are open to discovery like nursing home records are."

"I think the plaintiffs' bar in our state has become saturated with people who don't have the patients' best interests at heart," Wyatt says. "Huge jury awards will prohibit people who need the protection of the courts from having any recourse - the facilities won't have liability coverage." He notes a $2 million verdict that came down while the legislature was in session. The case lasted four years. The family of the patient left their relative in the accused nursing home the whole time. Wyatt also believes the television ads run by Wilkes & McHugh and other law firms "are geared as much to influence future juries as to find future clients."

Even Arkansas's trial lawyers, who fought the nursing homes fiercely during the legislative session, "recognize that Arkansas nursing homes are currently experiencing a shortage of available insurance coverage," according to Harrison, the president of the Arkansas Trial Lawyers Association. Rather than "tort reform," Harrison says the nursing homes should turn to "risk management" for a solution.

"Modern risk management not only results in a net benefit to a nursing home's bottom line, it also improves the level of care given to the residents of the home," Harrison writes. "A public report in Florida indicates that an assisted-living facility in that state managed to reduce its annual insurance premiums by 50 per cent after installing video cameras to help monitor patient care. Other examples of cost-effective risk management include making entrances and exits more secure, and enforcing strict access to areas where medicine and cleaning supplies are stored."

The interim Insurance and Commerce Committees of the House and Senate will study ways to help nursing homes obtain insurance. A meeting is scheduled Dec. 20 at the Capitol.

Besides their philosophic objections to restrictions on the right to sue, trial lawyers don't concede that such restrictions would solve the problem of high insurance costs anyway. Although it seems reasonable, a firm connection between jury verdicts and rising insurance premiums has remained difficult to prove throughout the long "tort reform" debate nationally. Wilkes & McHugh, and others, say that shortage of nursing home insurance is a national problem that began before juries were awarding large verdicts, that the big verdicts result from poor care, that the shortage is caused largely by the economic cycle of the insurance industry, and that "tort reform" has failed to lower insurance premiums in the states where it's been tried.

There's a partisan coloring to the "tort reform" debate. Republicans, who get money from insurance companies and from corporate defendants in civil suits, generally favor "tort reform." Democrats, who receive contributions from trial lawyers, generally oppose it. The U.S. House of Representatives recently passed a "tort reform" bill to protect insurers and businesses from large judgments in terrorism-related lawsuits. The Republican-majority House approved the bill on a strict party-line vote. In Arkansas, Insurance Commissioner Mike Pickens, a former insurance company lawyer and a raging Republican, is pushing tort reform. He's exchanged angry letters with Harrison and Harrison's law partner, state Rep. Sam Ledbetter, D-Little Rock.

Whatever merit there may or may not be in Wilkes' suggested alternatives to nursing homes - adult day care, custodial home care - these suggestions have not been implemented on a large scale anywhere. And they won't be, in the near future. They entail people taking more personal care of their elderly relatives. People do not seem greatly interested in this approach.

It's customary for the plaintiff's lawyers in nursing home cases to get 40 percent of the judgment. Thrailkill more or less confirms that's the arrangement in the Sauer case too. But he notes that the verdict could be reversed or reduced by the Supreme Court. (Or the parties could negotiate a settlement. Barring a settlement, a decision from the Supreme Court is probably a year or more away.) And, like all plaintiffs' lawyers, Thrailkill says that the lawyers invest a considerable sum of their own money in these cases - taking depositions from witnesses, paying expert witnesses to testify, travel - and they don't get it back unless they win. The risk has not discouraged him. He's got another case pending against Rich Mountain and its corporate owners, and he's enlisted Wilkes & McHugh again. He said the defendants have changed lawyers.

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