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March, 2006


County Slammed- Loses Appeal in Elder Abuse Lawsuit
By Terri Alvillar

A San Francisco Appeals Court has unanimously denied Marin County's appeal to block a retrial in the case involving elderly Lillian "Abby" Abernathy whose will was changed to bequeath her million dollar Kent Woodlands home to Adult Protective Services social worker, Winnie Lau Casino. The February 22, 2006 decision grants a new trial in Abernathy v. County of Marin for negligence, elder abuse, and breach of fiduciary duty.
Abby's stepson, Thomas Abernathy, filed the lawsuit in August 2002, alleging the social worker "failed to take protective measures for the dementia-afflicted elder, failed to petition for conservatorship, while manipulating the elder to make a will benefiting the social worker." Casino and her husband, James Stewart, took Abby to Larkspur attorney Myron Greenberg who drafted a new will for Abby leaving the bulk of Abby's estate-not to her grandchildren as in her preexisting will - but to Winnie Lau Casino.

In the jury trial, with Judge Lynn O'Malley Taylor presiding, the court granted the County's motion for nonsuit on all causes of action except for intentional infliction of emotional distress. By special verdict, the jury found that Winnie Lau Casino's conduct was "outrageous and unethical, and that there should be consequences for the actions." However, the jury returned a verdict in favor of the County, represented by County counsel Dorothy Jones, concluding that the social worker "neither intended to cause emotional distress nor acted in reckless disregard of the probability of causing emotional distress."

Plaintiff Abernathy, represented by San Francisco attorney, Barbara Jagiello, and Sausalito attorney, John Mounier, moved for a new trial on the causes of action dismissed and the court granted a new trial. In a stunning reversal, Judge Taylor said the court "erred when ruling on the nonsuit motion and attributed the error to the County's "mischaracterization of the law and plaintiff's inadequate discussion of the issues." The appellate court concluded "the trial court did err when it granted a partial nonsuit and properly corrected its legal error by ordering a new trial."

Evidence was presented by plaintiff Abernathy that the County "failed to investigate in a meaningful manner the allegations that Casino neglected Abby's mental condition and exploited the elder's vulnerability for personal gain; minimized the allegations as a "brouhaha" (a direct quote by Susan Powers Kane, then APS program manager); retained Casino without any counseling on the matter; and never adopted any operational changes in response to the allegations."

At trial, Casino testified that the County never even asked how she became a beneficiary of Abby's will. Casino was not disciplined or counseled in any manner following the complaint of elder abuse.

Winnie Lau Casino was first assigned to Abby's case in August 1993. Although Casino testified that she closed Abby's case in 1996 (although no written notice was ever provided to Abby or the Abernathy family), Casino's involvement with Abby did not end in 1996. Casino continued to exchange phone calls with Abby, took her food, drove her to church, and communicated with another social worker about her, Judi Jensen of Marin Support Services for Elders (MSSE) (the County had arranged for MSSE to pay Abby's bills for a fee).

Judi Jensen denied that Casino withdrew as social worker in 1996 and testified that "the County's collaborative relationship with MSSE never changed from 1993 to 2001, and Casino continued to work with Jensen to assist Abby with social services."

Jensen testified that she was in touch with the County and working with Casino "throughout this entire case." Jensen's contemporaneous billing records show multiple contacts with "Adult Protective Service W. Casino" regarding Abby.

The County argued that Casino had no fiduciary duty to Abby; however, the appeals court cited a fiduciary duty can arise in the case of a "confidential relationship" which refers to "an unequal relationship between parties in which one surrenders to the other some degree of control because of the trust and confidence which he reposes in the other." It stated the trial court properly granted a new trial on the breach of fiduciary duty cause of action "because there was credible evidence of a confidential relationship in that Abby was vulnerable and reposed trust and confidence in Casino. Abby was elderly and suffered from delusional paranoia and dementia. Abby trusted Casino, as Casino herself admitted."

The appellate decision cited McChristian v. Popkin (1946) wherein "if the employer, after knowledge of or opportunity to learn of the agent's misconduct, continues the wrongdoer in service, the employer may become an abettor and may make himself liable for punitive damages. Winnie Lau Casino is still employed by Marin County Adult Protective Services.

(This case has been covered in the Coastal Post's March 2002, County Fails to Protect Frail Elderly, and the August 2002, Elder Abuse Lawsuit Filed Against County, and Jim Scanlon's January 2005, New Trial in County Elder Swindle Case).

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