Poljnelli Security Title Plaza

3636 N. Central Ave., Suite 1200

Phoenix, AZ 85012
Shughart.c (602) 650-2000
Facsimile: (602) 264-7033
www.polsinelli.com

Andrew B. Turk
(602) 650-2097
abturk(@poisinelli.com
PR0115.125292 / C

July 6, 2009

Via E-Mail and Regular J.S. Mail Via E-Mail and Regular I.S. Mail
Clarice Boutin Nancy Ledy-Gurren, Esq.
5801 East 29th Street LEDY-GURREN, BASS & SIFF, LLP
'T'ucson , Arizona 85711-5999 475 Park Avenue South
New York, New York 10016

RE: Teef'y v. Sunrise, et al.

Dear Ms. Boutin and Ms. Ledy- Gurren:

Enclosed is a copy of a letter received from Plaintiff s counsel in the above-

referenced matter. Although the letter is dated June 4, 2009, we only recently received it.
In the letter, Plaintiffs counsel indicates that his clients have authorized him to settle
their claims against the Defendants in their entirety in the amount of $100,000.00.

I am currently in the process of trying to arrange a settlement conference between

Plaintiff s counsel and Charlie Lee, Esq., national outside counsel for Sunrise Senior
Living Services, Inc. We have tentatively identified Monday, July 13, 2009 as a date on
which both Mr. Lee and Mr. Dwyer are available to meet in our offices. I am currently
attempting to confirm everyone's availability and willingness to participate in the
settlement conference. However, I am optimistic that the settlement conference will
occur on that date.

It is not necessary for either of you to attend the settlement conference, Mr. Lee
will have necessary settlement authority and we hope final settlement will be reached.
Obviously, I am not in a position to guarantee the settlement will occur. However, Mr.
Lee has settled numerous more contentious cases in the past.

Phoenix Kansas City St . Louis Chicago Denver Washington , DC New York Wilmington, DE
2538809.01
Clarice Boutin and ]Nancy Ledy-Gurren
Re: Teefy v. Sunrise
July 6, 2009
Page 2

I will write or e-mail again once the date for the settlement conference has been
confirmed . In the meantime, if you have any questions or concerns regarding the
proposed settlement conference, please do not hesitate to contact me.

Very truly yours,

POLSINELLI SHUGHART, P.C.

Andrew B. Turk

ABT:car

cc: Kristen A. Bennett, Esq. (via e-mail)

Windsor Lanzone, Esq. (via e-mail)

2538809.01
 CIA CC I O & DWYER, P.C.
Michael G. Ciaecio ATTOIRNEY5 AT LAW David J. Dwyer
mgc(^Ucd-lega I.com djd(a,cd-legal.com

June 4. 2009

Andrew B. Turk, Esq.

Polsinelli Shughart, P.C.
Security Title Plaza
3636 N. Central .Ave., Suite 1200
Phoenix, AZ 85012

Re: Ann C. Teefy v. Sunrise Senior Living Services, Inc., et al.;

Review of last telephone conversation ; Demand for settlement

Dear Andrew;

This letter is in follow up to our last telephone conversation. That conversation was
lengthy, and we covered a lot of ground . I thought it wise to summarize here some of what
we discussed . Much of our discussion concerned the strengths and weaknesses of our
respective cases in this matter , which led us to conclude that it might be time to consider
settling the case . I believe you had suggested I make a sum certain demand. which I will
ss liter in this letter.

First, however, let me respond to some issues addressed in your April 13, 2009
letter. In prior correspondence that followed Ms. Boutin's deposition, I made a few
discovery requests, including the name and address of The Forum's Human Resources
Representative. You questioned what 1 meant by that, but offered the name of Joanne
Barnes as possibly firing the description. In our conversation, I clarified that I meant the
"staffing person" referenced by Ms. Boutin in her deposition, in the context of my inquiry as
to who would know which CNAs and/or NAs were working the floor the weekend of Ms.
Teefy's fall and injury. You confirmed that Ms. Barnes was the correct person.

You stated that she still works for The Forum, and offered to make her available for
deposition . We also talked about just an informal interview, but all I am interested in is
obtaining; any information that may tell us who was working that weekend. Ms. Boutin, in
her deposition, testified that the original staffing assignments should still be available in hard
copy. Also, in my ori4o inal letter to The Forum, I directed your client to refrain from
destroying or discarding any potentially relevant information. So, I would hope that the
documentation as to who was working shat weekend would be available , and I suspect the
person in the best position to retrieve it is Ms. Barnes. Obviously , my intent is to speak to
each and every one of those staff members , and my ultimate goat is to find the nurse's aid
who caused Ms. Teefy's fall, or at least find out if any of the aids remember the incident.
As part of my informal discovery requests , please supply that information as soon as you
car;.

4562 N. 1st Avenue, #100 • Tucson, Arizona 85718 • Phone (520) 888-3135 • Fax (520) 888-3353
Andrew B. Turk, Esq.
June 4, 2009
Page 2 of b

I had also previously requested a copy of the "incident report" or like document,
created by your client and/or the facility regarding Ms. Teefy's fall and injury . You stated
in your letter that you are unaware of any such document , but even if such a document
existed, you would not produce it because it would be protected from discovery . Although I
disagree with that position , we did discuss that if such a document (or any such
documentation) does surface. although you may not disclose it, you would at least disclose
its existence through a privilege log . At this time, that is acceptable to me.

The final issue addressed in your letter is my offer to make my clients, John Teefy
and Ann Brumm , available for deposition now, and, if you feel you need to supplement
those depositions upon receipt and review of additional records, to allow you to depose them
a second time . You stated that you would discuss that offer with your client , and get back to
me, a plan you reiterated to me on the phone . Please let me know, as the offer stands. There
is no doubt in my mind that the most compelling part of our case lies in the testimony and
credibility of my clients, which you will not glean from any document or other disclosure.
In the interests of resolving this somewhat complex case , see below, I truly believe it will
serve all parties involved for you to meet and assess my clients, get their story , and thereby
be in a position to most effectively advise your client.

As I referenced, you and I spoke about the strengnhs and weaknesses of our
respective cases, and that lengthy discussion led us to an agreement that it might be as good
a time as ever to discuss a figure upon which the case could settle, and which would be fair
to both sides. I have discussed this issue with my clients, and we are prepared to
compromise the claim. I have authority to settle the case for 5100,000.00.

I believe you and I have discussed, not only in our last phone conversation, but
overall , just about every conceivable strong point and weak point of Plaintiff' s case and
Defendant's defenses . Having been a defense attorney for insurance companies for seven
),cars, and having been in the personal i njury field for close to 18 years now , I believe I have
a keen awareness of the weaknesses of our case , as you have aptly pointed them out. I had
already thought of every "problem" I may encounter in proving our case to a jury. They say
that no case is without its problems , and this one is no exception. But I am equally
confident that there is risk to your client, as well . I am absolutely convinced that something
did, in fact, happen to Ms. Teefy that weekend, and I truly believe we can convince a jury of
it.

First of all , there is the mere fact that she went into the facility with only a pubic
rami fracture (with everyone ' s, even her physicians ', expectations that she would be there
only a short time to rehabilitate, and then return to her life of independent living), only to
leave the facility with debilitating bilateral sacral fractures. There was a marked and sudden
downturn in her condition during the weekend that we allege this happened-a fact that
even Ms. Boutin verified in her deposition upon reviewing the chart. Ms. Teefy started
complaining of new and different sympt oms, such as a burning sensation down her legs and
into her feet. She had increased and more acute pain in her lumbar region, and her bowel
Andrew B. Turk, Esq.
June 4, 2009
Page 3 of 6

and bladder incontinence increased in severity (although, again, she had been significantly
improving in all areas prior to the incident).

I suppose a jury could agree with you that either Ms. Teefy already had these
fractures and they spontaneously became symptomatic, or that she did fall , but it was no
one's fault (perhaps explaining why it was not recorded , even though reporting to the state
would still be required). But I urge you to keep in mind that all I have to do is prove our
version of events by a preponderance of the evidence -tip the scales, more probable than
not, over 50% likelihood, etc.-you know the argument. I am confident that we can do that,
despite what seems to be your strongest argument that the records, even the St. Joseph's
Hospital records, fail to clearly reflect the incident as we have alleged it happened.

Regarding that aspect of your defense, you have pointed out that , not only are the
records from The Forum devoid of any, mention of Ms. Teefy ' s fall (or obviously any
wrongdoing on the part of the staff ), but the St. Joseph's Hospital records following her
release from The Forum (in April and May of 2006) are suggestive of your defense that the
incident never happened . Although I agree the St. Joseph ' s records do not make a strong
case in support of our allegations, there is certainly mention of and reference to the incident
in those records.

For instance, in a Progress Note, authored by William B. Luian, M.D. during his
neurological consultation, dated April 26, 2 006, he noted "Hx discussed [with] Dr.
Bastiampilliar [sic][-] apparently [patient] pushed back in chair several days PTA, had been
declining in [?] since." That history was taken only two days after her admission to the
hospital Additionally. in a forth entitled -Occupational 7herapy Acute Evaluation, " dated
April 27, 2006, under Comments, it states "[patient] was independent ADLs and mobility;
admitted to hospital, [discharged ] to Forum and now is back after a fall." In a Consultation
report from Nicholas R. Bastiampillai ,.D.O., dated 05 / 11/2006, under Hospital Course, in
reference to her stay at The Forum , Dr. BastiampiIlai reports ''She was progressively doing
well until she had sustained trauma according to thmily two days prior to this admission."

Also, it is apparent that Ms. Teefv's March 2006 x-rays (pre-Forum admission) were
reviewed by the physicians at St . Joseph ' s involved with her care in April 2006, and there is
no mention that those x-rays showed the bilateral sacral fractures . See, for instance, the St.
Joseph's Emergency Report, dated April 24, 2006, dictated by James Behra, M.D., in which
he states "She had back x-rays that showed no significant acute abnormality ," referencing
her March admission. Yet, upon revie,,ving the April 25`t' MRI of her lumbosacral spine, Dr.
Lujan reports, "... but MRI of the lumbosacral spine shows bilateral sacral fractures,
presumably acute ." See Dr. Lujan 's Consultation Report, dated 4pril 26, 2006, under
"Impression. " About a year ago, I met with Dr . Lujan, and he is willing to testify that the
sacral fractures happened during her stay at The Forum.

Also, keep in mind, much of the reference in the St. Joseph's records suggestii that
her then-current condition was related to the pubic rami fracture preceded the April 25
Andrew B. Turk, Esq.
June 4, 2009
Page 4 of 6

MRI of her lumbosacral spine, which was the first objective evidence of the sacral fractures.
Once that study was done and interpreted, the incident at The Forum is mentioned, and there
is no further association of her symptoms to the original pelvic injury. Dr. Lujan's
testimony will support this.

You have also pointed out the fact that much of the April-May 2006 St. Joseph's
records reference the fall or incident to have happened two days before that admission,
adding that the timing does not mesh with my clients' story of when their mother was
injured at The Forum. I am not so concerned with this inconsistency. For one thing, the
records from The Foram do show a marked decline in her condition, and a marked increase
in her lower back and lower extremity symptoms, around the time of that Easter weekend.
The Forum records do not reflect that change in her condition two days before her admission
to St. Joseph's.

Secondly, any one of the providers that sawn her at St. Joseph's would likely agree
that once a history is taken, commonly, it is just repeated, as one staff member refers to the
last staff member's notes or report. If a mistake is made in a history, it is subject to being
repeated over and over, attain. I have seen this countless times in reviewing; medical
records, as Pm sure you have. I do no-: agree this seeming inconsistency is detrimental to
my clients' case.

We were, quite honestly, putting a lot of faith in our expectation that Ms. Boutin
would testify that she remembered the meeting with John Teefy and w=hat was discussed.
That is why I pushed for her deposition earlier than later. Obviously, for reasons beyond our
control, she did not so testify. This was admittedly very disappointing to John Teefy and
me. But it is highly significant that she didn't testify the meeting never occurred, only that
she could not remember whether it occurred or not. She did not rule it out, and provided a
compelling reason why she might not remember the meeting-that being her husband's
poor health and the fact that she had only him on her mind in that time period. Thus, I don't
think it will come dowel to a "he said/she said" argument. Rather, the jury will believe John
that the incident was discussed and the :records were reviewed. This will segwtay quite
convincingly into the argument that the records had been altered. If we convince the jury of
the latter, there will almost certainly be a punitive aspect to the jury's verdict, either in the
form of exemplary damages (per the APSA), or in the form of heightened compensatory
damages.

I have one more point regarding Ms. Boutin ' s testimony as to why she doesn't
remember the meeting between her and John . I know I will have to approach this issue
carefully at trial , but this testimony also puts into question whether she was able to perform
her job functions reasonably . At the very least, it may serve to explain to the jury why there
is no incident report and why no formal (or otherwise) investigation was done. The Charge
Nurse had other things on her mind (and who could blame her?).
 Andrew B. Turk, Esq.
June 4. 2009
Page 5 of 6

On the other hand , again, John Teefy and Ann Brumm will make exceptionally
credible witnesses , and their testimony is exceptionally compelling. This , together with
what perhaps amounts to "circumstan-ial" evidence , leads me to believe that we will carry
our burden of proof on liability in a jury trial. Regarding damages, f have been investigating
the wrongful death claim. I have been communicating with Robert J. Armbruster, M.D.,
Ms. Teefy s primary care physician both before the fall she had at home that resulted in her
admission to The Forum and after the fall she had at The Forum. I do not have a written
opinion from him, wet, but I fully expect him to produce one consistent with our discussions.
He has opined to me that based on all of the records he has reviewed, including all the St.
Joseph ' s records, The f=orum records , and the Kivel records, within a reasonable degree of
medical probability, the bilateral sacral fractures marked a significant downturn in Ms.
Teefy's overall condition, and was a contributing cause of her death (which occurred on
May 15, 2008). Remember, Dr. Lujan will testify that the sacral fractures occurred during
her stay at The Forum.

Please understand that our current demand of $100 ,000.00 for full and final
settlement of all claims in this case is riot dependent on the wrongful death aspect of the
case. The damages aspect of the case is strong , whether in reference to the APSA cause of
action ] or wrongful death cause of action. The offer to accept such a modest figure in
compromise of the overall case is more reflective of the liability and causation issues we've
discussed, despite what the legal theories and bases of my clients ' damages may be.

The last point I would like to cover in this letter is your stated concern over the
admissibility of Ms. Teefy's statement to her son and daughter regarding what happened to
her. Along with Arizona Rules of Evidence, Rules 804(b)(5) and 803(24), I will argue that
the representation by Dr. Lujan, quoted above , that she was pushed back in her chair, along
with the Occupational Therapy notation that she returned to the hospital from The Forum
because of a "fall", and Dr. Bastiampillai ' s reference to a -trauma" she had sustained while
at The Forum, are all admissible under Ariz .R.E'vid., Rule 803 (4)(Statements for Purposes
of Medical Diagnosis or Treatment). Keep in mind also that "[u]nder the broad language of'
the rule, the statements ' need not have been made to a physician. Statements to hospital
attendants, ambulance drivers, or even members of the family might be included."' See
_Arizona Practice Series: Arizona Lmv of Evidence (Revised Fourth Ed ), §803:5, pp. 517-
518. [footnote omitted]

In addition, Ms. Teefy's statements to her daughter are also admissible under
Ariz.R.Evid., Rule 803 ( 1)(Present Sense Impression ) and (?)(Excited Utterance), Keep in
mind, it has not been definitively established how soon after the event the statement must be
made to qualify for either of these exceptions to the hearsay rule; rather, it is left up to the
discretion of the trial court. Arizona Civil Rules Handbook (2009 Ed), p. 1121. And the
notes from Ann Bnzmm that I disclosed to you are significant, because they establish that
upon Ms. Teefy's first opportunity to relay to her family what happened, she took it, and her

1
See my letter of August 8, 2008 for a more extensive discussion of these damages.
Andrew B . Turk, Esq.
June 4, 2009
Page 6 of 6

daughter (a nurse) recorded it. Finally, where statements are offered to show the impact
upon , or the state of mind of, the persons who heard them or read them , they are not hearsay.
Rutledge v. Arizona &l. Qf Regents,147 Ariz. 534, 711 P.2d 1207 (Ct. App. Div. 1 1985).
This would apply to explain the actions taken by John Teefy and Ann Brumm after hearing
from their mother that she was abused.

The bottom line on this issue is, one way or another . Ms. Teefv's statement of what
happened to her is likely going to be ruled admissible by the trial judge. And an adverse
ruling would only provide a ripe issue for appeal . See Trevino v. Astee Industries, Inc., 156
Ariz. 320, 322, 751 P.2d 980, ,_ (App. 1987).

Obviously, there is a great deal for both sides to consider in the litigation of this
matter, and clearly risk for both sides. As you and I have discussed, if we are going to
litigate the matter further, it will likely require a tremendous amount of work and expense to
both sides. This is why we believe settling the entire case for S 100.000.00 would be the
fairest way to resolve the dispute, at this time.

I look forward to hearing from you on the either the demand, or in follow up to the
many other issues raised herein.

Sincerely,

/SDavid J. Dwyer
DJD:vep