Only the jurors know for sure the turning point in the 17-day trial, when they turned against the United Cerebral Palsy Association of Niagara County.
Jurors deliberated only about two hours Tuesday before awarding $11.1 million to a 59-year-old blind and developmentally disabled man who has lived for 26 years in a Niagara Falls group home run by the association.
Robert Behringer is a kind, easygoing man who is prone to seizures and unable to care for himself.
His brother, Earl Behringer Jr., who brought the lawsuit as Robert’s guardian, said Robert endured dozens of incidents at the 10-person group home since 2006 that stripped him of his dignity and jeopardized his safety.
While the trial focused on the care provided to Robert Behringer, his attorneys raised questions at the trial about the association’s quality assurance program that is supposed to protect the hundreds of people served at the association’s other facilities across Niagara County.
Niagara Cerebral Palsy operates four intermediate care facilities: the Niagara House on Lockport Road, where Robert lives; and facilities in the City of Lockport and the towns of Niagara and Wheatfield, according to the association’s website. These facilities provide 24-hour care to residents. Residents participate in off-site program activities and day-treatment programs. The services include occupational, physical and speech therapies as well as recreational activities and nursing care, according to the association’s website.
About two dozen people live in six other homes operated by the association, according to the website. In all, Niagara Cerebral Palsy serves some 700 people through its residential, educational and vocational programs and other services, said Diane Bahre, the association’s quality assurance administrator, who testified at the trial.
Bahre said she looks into 700 to 800 reported incidents a year, everything from bruises to more serious health concerns that require trips to the hospital. She also looks into allegations of abuse and employee misconduct.
“I investigate everything that’s brought to my attention,” she testified.
“She is terribly overworked,” said attorney Terrence M. Connors, who, with co-counsel Joseph D. Morath Jr., represented Behringer.
“Niagara Cerebral Palsy is not taking the time and money to invest in a good quality-assurance program,” Connors said in his closing argument.
David C. Blaxill, a New York City lawyer who represented the association, declined to comment after the verdict.
Early in the trial, Michelle Adams said she quit working at the association’s Niagara Falls group home on Lockport Road after only a short time because of what she called “horrific conditions.”
She said her complaints went nowhere when she worked at the group home. So she detailed her concerns in her resignation letter.
“My verbal words were falling on deaf ears,” she said in her videotaped testimony. “I would constantly speak to management, speak to upper supervisors, about things that I saw that were happening in the house, and nobody was doing anything.”
With the resignation letter, “it was my hope at some point somebody would be able to see at least written, you know, that there are things going on here that need to be addressed, because it wasn’t happening with me telling them verbally,” she said.
She said she heard employees talking about sexual behaviors, using foul language, talking to residents inappropriately and leaving work before the end of their shifts, with co-workers falsifying their time sheets.
No one from the association followed up with her.
“It’s ludicrous,” Adams testified. “Not once has anybody contacted me by phone, by mail, by anything, to ask me question, to ask me to explain myself … to ask any questions about the things that happened. It’s as if it didn’t exist, as if what I saw and what happened there did not exist.”
Earl Behringer, a 71-year-old jeweler, formerly of Amherst, provided emotional testimony about growing up with Robert.
“He just loved life,” Behringer said. “He just loved everything.”
Robert would call Earl “Pudgy,” Earl recalled.
When Robert turned 16, his mother could not physically take care of him. So Robert was sent to the West Seneca Developmental Center.
Almost two decades later, Robert then moved to Niagara County, where the family thought his care would be better and he would be less restricted, Earl Behringer said.
After Earl moved to Florida in 1983, he said he tried to call Robert every week. When he moved to Amherst to care for his elderly parents, he said, he had a standing request for the association to transport Robert to his East Amherst home every Sunday in July and August for lunch.
After Earl returned to Florida, he began receiving reports about incidents and injuries to his brother: broken bones, teeth knocked out and an uptick in seizures, among other problems.
The brother said medication errors triggered and worsened Robert’s seizures.
Niagara Cerebral Palsy employees described how they took Robert to hospitals in Rochester and Buffalo to find treatments, medications and medical devices to reduce his seizures, and they reported the number of seizures has fallen dramatically in recent falls.
Earl Behringer said he received phone calls and letters from the nonprofit organization alerting him about what has happening.
“There were so many phone calls like this,” he testified. “I wanted to get him out of there for his safety.”
Connors told jurors that he believed the trial’s pivotal moments came during the cross-examinations of two of the experts hired by the defense team: Dr. Patrick J. Hughes, a Southtowns neurologist, and Richard Bradley, executive director of the Arc of Alachua County in Gainesville, Fla.
Hughes testified that Robert Behringer was among the small percentage of epilepsy patients whose seizures cannot be controlled.
During Connors’ cross-examination, however, Hughes confirmed his “cursory examination” of Robert Behringer lasted just seven minutes, for which he was paid $2,100.
“His exam, to be kind, was a joke,” Connors told jurors during his closing argument.
Hughes, who said he has not conducted research or published any articles or given any lectures on cerebral palsy, said the number of examinations he has administered on behalf of defense lawyers might be as many as one thousand.
Bradley, whose Gainesville organization runs a group home, testified employees can make mistakes when “under a tremendous amount of pressure with a lot of things going on in that facility.”
As for slips and falls and other accidents involving residents, “these are things that happen in the real world,” Bradley said.
Bradley review records and talked to Niagara Cerebral Palsy employees to prepare for his testimony.
Bradley called many of the complaints against Niagara Cerebral Palsy “simply allegations not proven.”
“I don’t believe all those allegations are true,” he said.
He called the association’s care of Behringer, “in general, a very professional delivery of service over that time.”
Connors, however, sought to discredit Bradley by bringing up allegations that Arc of Alachua County failed to properly care for a 23-year-old resident who was hit by a car and killed after wandering away from the Gainesville group home last summer.
The Agency for Persons with Disabilities, a Florida state agency, has filed an administrative complaint with the state and is seeking to revoke the group home’s license, according to a Nov. 30 report by the Tampa Bay Times.
“They can’t prevail unless you buy Bradley and Hughes,” Connors said of Niagara Cerebral Palsy in his closing argument.
Within hours, the jury came back with its verdict. Niagara Cerebral Palsy did not prevail.