Class action stands in nursing-home suit

Justices back status in case of ’14 death

A man whose mother died in one of businessman Michael Morton’s nursing homes won a significant victory Thursday in the Arkansas Supreme Court.

Andrew Phillips’ lawsuit is still pending, but the court upheld Pulaski County Circuit Judge Tim Fox’s decision that granted class-action status to the case in all but one area — negligence.

Phillips filed a wrongful-death lawsuit against Robinson Nursing and Rehabilitation Center LLC in North Little Rock, Central Arkansas Nursing Centers Inc., Nursing Consultants Inc. and Morton in 2015 over the death of Dorothy Phillips, who lived in the nursing home from Aug. 19, 2013, until her death Feb. 22, 2014.

Phillips has alleged understaffing and resulting problems in the nursing home.

No court has ruled on the lawsuit’s allegations. Thursday’s action concerned only the class-action issues.

Justice Rhonda Wood was the only justice to join in the entire opinion as written by Justice Karen Baker. The other five justices on the court — Chief Justice Dan Kemp and Justices Courtney Goodson, Josephine Hart, Robin Wynne and Shawn Womack — concurred in part and dissented in part.

Morton spokesman Matt DeCample said in an email that Morton’s attorneys had no comment on the decision because the case is pending.

Phillips’ attorneys did not immediately return phone messages seeking comment.

Thomas Buchanan, who has represented other plaintiffs suing Morton nursing homes, called the Supreme Court’s ruling Thursday “absolutely a victory” for Phillips.

Buchanan said he had not read the court’s majority opinion but said, “I think it was a big win for them [Phillips and his attorneys], quite frankly.”

In a separate opinion written by Hart and joined by Womack, Hart said she agreed that the negligence claim should be decertified. But she disputed the court’s findings that other lawsuit claims were properly certified.

In a third opinion written by Kemp and joined by Goodson and Wynne, Kemp said he agreed with the majority opinion on all points except for the negligence claim. He said he believed its class status also should have been upheld.

But Baker, writing the majority opinion, said, “Negligence requires an individual analysis of each plaintiff ’s specific allegations.”

“Even assuming there are questions common to each class member, we cannot say that these common issues clearly predominate over the individual issues,” Baker wrote.

The court reversed that single part of Fox’s multifaceted ruling and ordered the case back to his court with instructions to decertify the class solely on the negligence claim.

The high court rejected Robinson Nursing and Rehabilitation Center’s arguments that Phillips had failed to prove some essential elements behind the class-action status on other points.

To certify a class, Baker wrote, the circuit court must determine that “there are questions of law or fact common to the class,” Arkansas’ Rules of Civil Procedure state.

“Once commonality is determined when deciding whether to certify a class, the next question is whether common questions of law and fact predominate over any questions affecting only individual members,” Baker wrote.

“The commonality requirement is clearly satisfied because … Robinson’s act of understaffing, independent of any action by Phillips, establishes a common question relating to the entire class,” Baker said. “Further we find that the predominance requirement has been satisfied.”

Baker noted that the lower court had explained that “the common overarching issues concern whether appellants have liability for chronic understaffing under the admission agreement and the asserted statutes.”

After citing case law, Baker wrote, “Accordingly … as to the breach of contract, [the Arkansas Deceptive Trade Practices Act], and unjust-enrichment claims, we hold that the circuit court correctly found that the commonality and predominance requirements of Rule 23 had been met.”

Rule 23 refers to a provision in the Arkansas Rules of Civil Procedure.