Partners Andrew Klauber & Jeffrey Rejan obtain Defense Jury Verdict of alleged assault of a developmentally disable person.

Mother of non-verbal developmentally disabled autistic adult resident of defendant’s group home alleged that her son was sodomized by another non-verbal developmentally disabled adult resident, as a result of defendant’s negligent supervision of the residents.

Allegedly concerned about behavioral changes in her severely autistic, developmentally disabled non-verbal adult son, on the evening of February 23, 2013, Marcia Senior placed a digital voice recorder in the closet of her son’s room at a group home located at 21 Tiff Court in Jamaica, Queens. Although she retrieved the device a week later, the batteries were depleted, and she did not listen to the recording until April 10, 2023. She claimed that the noises she heard reflected a sexual assault. A NYPD detective subsequently classified the incident as “sodomy,” although charges were never filed. Plaintiffs sued the operator and manager of the group home, Eihab Human Services, Inc. and three officers or employees. (The claims against the individuals were dismissed prior to trial.) The suit alleged negligent supervision of the residents, negligent hiring, training and supervision of employees, violation of federal statutes, and various civil rights violations. Defendant’s internal investigation focused upon the direct care counselors on duty on the evening in question (ultimately exonerating them). The detective’s investigation and plaintiffs’ case ultimately focused upon another developmentally disabled non-verbal adult resident of the group home with a history of inappropriate sexual behavior and a tendency to enter the rooms of other residents. Although defendant’s motion for summary judgment was denied, a motion in limine resulted in the exclusion of certain evidence which altered the course of the trial. The defendant was successful in excluding what was established to be a bogus version of the mother’s audio recording (and any resulting evidence). The Court also rejected plaintiffs’ attempt to obtain a spoliation charge concerning records of the other resident, which defendant was unable to locate. The Court ruled that the records which were produced were sufficiently representative of the other resident’s behaviors.

Although examination at the Long Island Jewish Hospital emergency room was negative for rectal tears, bleeding or sexually transmitted disease, the mother was not satisfied with the thoroughness of the examination. She removed her son from the group home and arranged for him to be examined under general anesthesia by a colorectal surgeon at N.Y.U. Hospital in Manhattan. His diagnosis was that plaintiff had scars which reflected internal sphincter damage resulting from repeated sexual encounters. He further opined that the injury was permanent, that plaintiff would experience fecal incontinence and that he would ultimately require an ostomy bag. An expert psychiatrist claimed that plaintiff suffered from post-traumatic stress disorder (PTSD). However, on cross-examination, defense counsel was able to point to voluminous records to force the expert to concede that none of plaintiff’s treating doctors had diagnosed PTSD. The mother was unwilling to arrange for her son to reside in another group home or to participate in an alternative day habitation program, fearful that her son could again be victimized. She claimed the cost of a home health aide, and punitive damages were also sought. Defendant’s expert colorectal surgeon examined the plaintiff almost four years later under conscious sedation. He characterized the results of his examination as completely normal. He documented his findings with external and internal photographs. Plaintiffs chose not to introduce photographs and a sonogram belatedly taken by plaintiffs’ expert colorectal surgeon during a rebuttal examination.

Prior to trial, the Court excluded testimony by plaintiffs’ expert colorectal surgeon that he could determine that plaintiff had been abused, merely because plaintiff did not allow a rectal exam. Defendant was not permitted to cross-examine the expert about a prior malpractice verdict stemming from the death of a patient. However, after plaintiffs’ attempt at trial to establish the thoroughness of the rectal examination by plaintiffs’ expert (characterized as a treating physician), defense counsel was able to establish upon cross-examination that the NYU Hospital operative records reflected that the examination under anesthesia by plaintiffs’ expert actually only took a mere three minutes. Defense counsel used the photographs taken by defendant’s colorectal surgeon to great advantage, capitalizing upon the absence of any photographic evidence from plaintiffs’ expert to support his opinion that there was significant scarring.

At the close of plaintiffs’ case, all remaining claims other than the claim for common-law negligence were dismissed without opposition. During summation, plaintiffs’ counsel sought 12.8 million dollars in damages. After rendering their verdict, the jurors indicated that although they found that the defendant breached a duty to properly supervise the residents, they did not find that the breach proximately resulted in injury or damage to the plaintiff. In other words, they did not find that the evidence established that plaintiff had been sodomized. Prior to deliberations, the parties entered into a high/low agreement pursuant to which plaintiffs’ total recovery, inclusive of any punitive damage award, would be limited to $5,000,000 and plaintiffs would receive at least $850,000. Thus, notwithstanding the defense verdict, plaintiffs will recover $850,000.