Morrison Mahoney Partners Joe Desmond and Lauren Cincotta recently obtained a directed verdict for our assisted living facility client in a 93A claim after the plaintiff rested. The plaintiffs alleged that the defendant committed unfair and deceptive acts or practices in misrepresenting the services that would be provided in the assisted living facility as her parents aged. The central contention was that the defendant promised that the couple would be able to “age in place” and live out their lives together, unless one required a transfer to the memory care unit or required skilled nursing care.
After several uneventful months, the plaintiff’s mother experienced debilitating back pain that required several hospitalizations for pain/medication management, each of which was followed by a period of rehabilitation. After the first such hospitalization/rehab stint, the plaintiff was informed that her mother would not be permitted to return unless she privately retained a private duty aide to assist her mother to bathroom given her mother’s inability to transfer with the assistance of only one aide provided by our client. The plaintiff contended that the repeated cycle of hospitalizations and rehabilitation stints caused her parents to be unnecessarily separated for approximately half the time they were residents of the assisted living facility over an 18 month period, and that the defendant continued to charge the couple for residence despite the alleged inability to provide the level of services that had been promised.
Prior to trial, the court allowed our motions for summary judgment on the common law claims for negligence, breach of contract and wrongful death, agreeing with the defense argument that the standard of care in an assisted living facility had to be established by expert testimony, which the plaintiff did not offer. Prior to trial, the court also struck the plaintiff’s claim for a jury trial given the now dismissed common law claims, exercising the court’s discretion to not submit the case to a jury. After five days of evidence, the plaintiff rested without offering the 93A demand letter into evidence, a failure seized upon by the defense team. While there was some evidence introduced from the 30b6 deposition of the defendant that the defendant had received the putative 93A demand letter, and there was some evidence of its contents, the testimony was insufficient to carry the plaintiff’s burden of proving that the demand letter described the injury or the specific relief sought. The court further declined to allow the plaintiff’s motion to re-open the evidence after the defendant moved for directed verdict proceeded to enter judgment on the 93A count.
