ALC-Claims Review/Litigation Reports Oversight

If everyone will take their seat. Welcome to uh ALC claims Review Committee, oversight committee. Uh, my chair was still sitting here just a second ago, but he must have got a, got up. So good night, afternoon, everyone. We'll start today's meeting with the litigation oversight portion of the agenda and then proceed with the claims review. Agenda item B1. Agenda item B1 contains two litigation reports submitted by the Department of Labor and Licensing. Will someone from the agency please come to the table, introduce yourself, and then present, uh, the reports and we'll. Take up each report separately. Uh, thank you, Madam Chair. I'm Dan Parker, general counsel for the Department of Labor and Licensing. Uh, first off, I wanted to say Merry Christmas and a happy holidays to everybody. Uh, the first case we have on the agenda, Ralph Hudson, the director of the division of Labor against, uh, the listed defendants, uh, upon service of the complaint, the, uh, individual defendant contacted me. We were able to work out a payment plan, which uh has been paid in full at this point in time, so we've collected all that money, we'll pass that on to the wage claimant, hopefully in time for Christmas. And, uh, be dismissing that lawsuit. Uh, the second case, um, that we, we serve the complaint and received no response from the defendant, uh, so we took a default judgment in that case and we're in the collection phase. All right. Are there any questions? On Adam when I. Are there any questions on A1B. Seeing no questions, do I have a motion to review? I've got a motion. Do I have a second? 2nd, any discussion? All in favor, say aye. Oppose no motion carries. Thank you all very much. We're going to move down to item C. Miss Erby, if you'll come to the table and introduce yourself, we'll move on to the claims review portion of the agenda for this part of the agenda, Ms. Johnson will read a brief summary of each claim followed by any discussion or questions from the members. And then the subcommittee will take action on the item. Adam's in Part C of the agenda are reissuances of lost or expired warrants or unpaid bills for the agency admitted liability. Miss Irby Annette. Good afternoon. I'm Catherine Irby. I'm the director of the Claims Commission. You're recognized now. Oh, no, Miss Johnson's recognized. I'm having a hard time today. We ran over here. Adam C1 is claim number 250154, University of Arkansas for Medical Sciences versus Department of Human Services. UAMS filed this claim against DHS for an unpaid bill in the amount of $115,639.89. DHS admitted liability in full, the Claims Commission allowed the claim and referred it for review and placement. on an appropriation bill. Ms. Oby, would you like to add anything? No, ma'am, but I'm happy to take any questions. Are there any questions? Seeing no questions, do I have a motion to approve the item? We've got a motion in a second. Any discussion? All in favor say aye, oppose no, motion carries. Item C2 is claim number 250249, Barclays Bank versus Department of Finance and Administration. The claimant requested reissuance of an outdated warrant in the amount of $447,267 payable from the Department of Finance and Administration Corporate Income Tax Division. The Claims Commission allowed the claim and referred it for review and placement on an appropriation bill. Miss Irby, would you like to add anything? No, ma'am, happy to take any questions though. Are there any questions? Senator Bart, you're recognized. Senator Hester. Like, How old was this? Somebody just lose a $450,000 check. So this one has a 23 at the start of the warrant number. So it's not, it's not very old. What happened to it? I do not know, but it was presented to us. Thank you. Are there any other questions? Seeing no other questions, so I have a motion to approve motion. I got a second, got a second, all in favors. Oh, discussion, all in favor say aye. Oppose no motion carries. Now we'll move to D, which is the awarded claims that has been referred pursuant to Arkansas code 1910-215B. Miss Johnson, please give a brief description of the claim. Item D1 is claim number 241725, Milton Holleman versus Arkansas Department of Transportation. In this claim, the claimant sought $43,293.18 in damages plus $500 per day for loss of work, alleging an Ardot employee driving an ROT vehicle failed to yield the right of way at an intersection and collided with his tractor trailer. Ardot did not dispute liability and filed an emergency motion for payment of storage fees, which the claims commission granted awarding a partial judgment of $4,252.38. Ourdot then filed a motion for summary judgment stating that it was willing to pay claimant an additional $53,035.08 for vehicle repairs, wrecker services, and lost wages. Claimant did not object to Ardot's motion. The Claims Commission granted the motion, awarded claimant $53,035.08 and referred the award for review and placement on an appropriation bill. Arby, do you have anything you'd like to add? No, ma'am. Happy to take questions. Do you have any questions? Seeing no questions, do I have a motion to affirm the ruling of the Claims Commission as to this claim? Got a motion a 2nd, 2nd. Any discussion? All in favor say aye. Oppose no motion carries. Now we'll move on to E, which contains two awarded claims that have been appealed by the respondent. Miss Johnson, please give a brief description of the claim. Item E1 is claim number 190008, Sabrina Westcott versus University of Arkansas for medical sciences. Claimants sought $125,000 in damages after she tripped on an askew rug while entering UAMS to provide sign language interpretation services. Claimant alleged that UAMS was negligent in failing to use ordinary care to maintain its premises in a reasonably safe condition and that UAMS knew or should have known the rug posed a risk to business invite. UAMS denied liability, arguing it did not know of and could not have foreseen the potential danger. After a hearing, the claims commission found that UAMS failed to save enough video footage to show how long the rug had been askew and that this failure constituted spoliation of evidence. The commission therefore inferred that the video footage would have been unfavorable to UAMS in light of this inference, the commission found that UAMS was negligent as it failed to use ordinary care to maintain its premises in a safe condition. and awarded claimant $87,576.78. UAMS now appeals. Ms. Arby, does the commission have anything they want to add? No, ma'am, happy to take questions though Senator history, you're recognized for a question we deal with this routinely with potholes and, you know, on, on the highway, and we say, look, if we didn't know or couldn't have known, we, we, we never pay those. This seems to be some sort of a similar situation if they didn't know the rug became ex askew. you know, and so. The, the, the reasons for this 87,000 is they're saying they didn't have enough video tape of their doorway. Are they, are they required to keep videotape of the doorway? Well, in this case, Ms. Hart testified the UAMS employee, she testified that she had watched an extensive, you know, 30 minutes before the fall, so she could see what was going on and that the rug was askew, but the issue was that only a, a small portion of the video was saved to present to the claimant's counsel, so the claimant's counsel was not able to do the same analysis of the video that Miss Hart had done. to see, well, when did the rug become askew? How long did they know about it? How long had it been there should they have known that it was there, um, and so that was the, that was the basis for the commission's spoliation finding. They didn't find that there was any bad faith on the part of UAMS.spoliation doesn't require bad faith, but they did find They did make exfoliation finding, which then led under Arkansas law to an inference that the video that was not provided, that was not saved, would have been unfavorable to UAMS. OK, uh, Cha Chair Hodges, uh, Uh, I wasn't here at the beginning. Are, are we, if, if requested, are we allowing anyone to speak even if it's for, you know, 2 minutes or anything. I, I would like the questions to hear UAMS speak. Is there someone here from you again. Yeah, Chevat, sorry, uh, um. I would like to, if, if is there someone here from UIMS. Please come to the table, identify yourself for the record, and then you may answer his question. Good afternoon. My name is Sherry Robinson. I'm senior associate general counsel with the University of Arkansas Systems Office of General Counsel, and I'm happy to do my best to answer any questions. Senator. Thank you. So the question is, if you had Recordings, why didn't you keep them and uh. Yeah, were you required to keep them, uh, #2, like, did your staff know and what is the policy on if, if, if, if a rug gets kicked up. How often are you, should you know that it got kicked up? Sure, I absolutely understand. So I'll start by telling you that the video that was preserved was approximately one minute long. There was a gentleman who walked through the door, who obviously kicked the rug, which left a, a sort of hump, a second gentleman passed through successfully, unfortunately, Miss Westcott did not. So all of this took place within one minute. Um, as Miss Irby said, Ms. Hart examined the video. She always goes back a little bit, didn't see anything. wrong, uh, and was no reason, were not required to preserve extra video in that situation. And as you may imagine, that sort of thing takes up a lot of space. Um, so she didn't preserve any more than she felt was necessary to show what actually happened in that event. Um, as for the rug being askew, the only thing you can see on videos that it does somewhat cross the threshold and their double doors that open this way automatically. The doors were held open. The doors were not bouncing in any way to indicate that they're trying to close, but the doors were open. Um, Ms. Hart tried to recreate a test by laying the, the rug over the threshold. It wasn't exactly the same, but it was completely over the threshold enough to see, would it make the doors stop. It did not. The doors continued to function, but we did discover there is a button at the top that you can hold open. So based on this time of year, we infer that somebody had opened the doors, just left them open, and unfortunately, someone kicked a rug up. UMS did not have sufficient time to know that that rug had been kicked up and changed it, uh, or correct it, so. OK, uh, Doctor Ire in the, the, the Claims commission, which I think are You know Very competent people, their position was simply that they made this ruling simply based on enough of the recording wasn't kept. Uh, no. Uh, the commission, The commission Looked at the video and. And during the hearing, um, the video that was shown, there were, there were different conclusions that were drawn from the video. UAS drew one conclusion from the video and the claimant's counsel drew drew another, um, conclusion from the video about whether or not the Um Whether the rug was over the threshold, whether that presented an issue, whether it was kicked off, kicked up by the gentleman that went through or whether it was, um, still askew before then, um, And the commission, the commission came down on the claimants, the claimant's side of it. They found the claimants, um, argument to be persuasive, especially in light of the fact that we could not review, that the commission could not review, um, the whole video to see when the rug went from Straight in its right place. To an askew spot. Um And so the commission The finding was not solely based on the issue of spoliation, but that did factor into it. Yes. Senator Gilmore, you're recognized. Thank you, Madam Chair. Um. So for, for UAMS, how many entrances do you have to your facilities? I do apologize. I don't know the answer to that question. There are an awful lot of public entrances to our facility and, and I'll be quite frankly, it's one of those you, you can get trouble, in trouble if you don't have one so that people can dry their feet. You can get in trouble if you do have one and somebody kicks it up and we aren't immediately there to see it. So we have an awful lot of you sort of went to my next question before I got there because I was gonna ask how many interests and then how many rugs are at those entrances and for what purpose do they serve? and you've already established that. So I think it's Interesting that we're sitting here because clearly, I, I, I don't even know how it would be possible for you to keep track of every rug and whether it's a skew or has a bump in it, hump in it, whatever we're terminology we're using the time, um, that's a lot to keep track of. Yes, sir. OK. And to assume negligence on something like that is, uh, going, uh, A bit far in my opinion, but, uh, thank you. I think you answered my questions. Representative, uh, Speaker Shepherd. I wasn't following what you were saying about the threshold and the doors being opened. Could you clarify again to me. What, uh, what the significance of that may or may not be, and then secondly, uh, with regard to the footage that was preserved, what was the determining factor as to Why did, why was that footage saved? In other words, was it only video footage at the point in time that the rug was kicked up, had the rug been kicked up previously and then falling back in place. I, I guess I'm curious as to what the testimony and may and this may be for Miss Irby what the testimony was as to how UAMS made the determination that only that uh that minute of footage would be preserved. So if I understood the first part of your question, it was about the rug being over the threshold and, and the doors being opened, so the doors to the emergency department. There's actually sort of one of those entryways where you've got a set of double doors with an automatic opening. There's the rug and I, I, I can't tell you how big the thing is, but then there's a second set of double doors, saying they open automatically. On this day, the doors were held open and when you watch the video footage, the doors are stationary. There is no bumping like there's something obstructing the ability of the doors to close. The plaintiff or claimant in this case hypothesized that it should have been obvious since those doors were open, that there was a problem with the rug, it being over the threshold which set of doors open that first when you initially come from the parking deck into the that first section. And then the second part of my question was, what was the determining factor as to what portion of the video was, was preserved. Right. According to Ms. Hart, um, she had watched, like Miss Irby said earlier, several minutes before the incident, maybe about a half hour or so, anytime there's an incident brought to our attention and there's video footage she'll watch to see if there's anything, you know, contributing to the incident itself for which that you need to preserve the video. She went back, did not see any issues with the rug prior to that time when the gentleman walked through and you can see the rug kick up, and And it fell, you could see what looked like a hump. Now, obviously, this is not HD footage here, right? This is footage of a, a security camera, but it's enough for you to see there's some distinction in the rug at that point. A second gentleman walks through with no problem. Unfortunately, Ms. Westcott, her toe got caught and she did fall at that point and sustain injuries. Um, I will also add to that, Ms. Hart testified that in the previous 3 years and we only went Back for 3 years at that time, uh, just because it seemed like a reasonable amount of time. She had never had any complaints about the rug in that doorway, uh, before, and so UAMS was not on notice that this rug was, uh, an obvious hazard. Anything else that Speaker Shepherd. Represent uh Senator ice you recognized. Senator Rice, I know I'm waiting for it to come on. Thank you. What I understood you to say. The video that was available. Showed within approximately a minute. From the person walking through and catching their foot. And when, when it caused The problem Another person came through and didn't have a problem. As the business person I've had this happen. I preach it constantly. I watch it as much as I'm there. I do everything I can. In litigious society that we live in. Where is the cross? Over in this from personal responsibility. We have people I'm not saying that happened in this case we have people looking on their phones. We have people's minds somewhere else. When I go through the automatic doors, I'm always looking. I've seen them close on you before, same way with elevator doors. So I'm not, I'm not blaming so I just say stuff happens. And we're going to try to hold somebody. Responsible Just like a pothole. That Senator Hastro mentioned that we hear about in there all the time. That somebody hadn't Known about. If some administration person, somebody in charge had been notified, you've got a rug problem there and they didn't do something, it would be different. If they don't have a rug down there. Somebody's gonna have a little bit of moisture on her foot and slip and fall. And you're in the same thing. It's damned if you do and damned if you don't. And I don't minimize the fact that people get hurt. But I've had this happen in my business in the item that they tripped on because they kind of walked. Funny. Has been there for thousands and thousands, probably 10s of thousands of people that have walked by it over the years. And never had a problem. But one time they did. So do you feel like you a MS did everything responsibly they could do and would have reacted had they known different. Yes, sir, I do, and I will tell you we are constantly evaluating whether there are other options, um, when you said you're constantly looking, I feel the same way. Anytime I'm walking around the campus, if I see something wrong, whether it's a rug or a spill or whatever. I stop and, and be on alert to get someone to help because I feel like at that point, as their attorney, I'm on notice. And so I believe that everyone is trying to do the right thing, um, and, and correct. 11 last question and it might backfire for you. The rug I'm guessing it's not there just to be pretty, it's there as a functional safety device, is that right? That is correct. As you mentioned, when people have moisture on their feet, uh, that's gonna cause additional problems. Thank you. Senator Stubblefield I, it went off try again, sir. Yeah. Quick question, I give up. Don't touch it. Uh, now I forgot my question. These, these, these r I've been in uh UAS 100 times. These rugs have got rubber backings. And, and they're in a lot of, I mean, why I see them in all stores, a lot of stores, but the video itself did not show that the rug was over the threshold. It just showed there was this. You know, an uneven spot there. Is that true? Uh, that is correct. I assume that it sounds like you've watched the video, so it is a little bit over the threshold instead of completely over the threshold. And that rug, that rug, if you picked it up on one end, it tried to drag it there would be resistance against that rug, correct? Yes, sir. OK. All right, thank you, ma'am. It's Herby, yes. If I could jump in for just a second, the one thing I wanted to point out is that we've been talking about potholes is that, you know, there's a, there's a legal standard for different types of claims and for potholes, you know, we talk about whether or not the department knew or should have known that this, that this road condition existed. In this particular claim, um, this is a negligence claim where the Premises liability, there's a certain type of law, and in this case, UAMS had a duty to use ordinary care to maintain its premises in a reasonably safe condition. That's the legal standard. That's what, that's what UAMS had to meet. Did they use ordinary care to maintain their premises in a reasonably safe condition. And In this case In part due to the video that was not saved, so that everyone could view it in full. The commission found that UAMus had not used ordinary care to maintain its premises in a reasonably safe condition. Obviously, UAMS opposes that um position, but I just wanted to be clear about the legal standard that was applied in this case. And that's it. I still think I have questions about that though, because I would think the rug being there would be ordinary care to try to protect people if it's wet from falling and slipping. And hurting themselves. So I would consider that ordinary care. I could be wrong though. Well, and I think the commission found that, um, the rug being there is one aspect of it, but also maintaining the rug. This is claimant's counsel here, but maintaining the rug, um, is another aspect of the ordinary care and that's where the commission found that UAMS had breached its duty. I've got a motion at the appropriate time, but I, I am glad the claimant's counsel came up because, uh, we've asked a few questions. I'd like, I I'd like to hear if you've got a, a, a, a statement. Just, just push the button. Say your name for the record, please, and who you're with. Uh, my name's Charsy Gordon. I'm with Taylor King Law and I represent the claimant Miss Sabrina Westcott. So she, she represents the claim. OK my question is what do you say to the discussion you've heard so far? Well, a little frustrating. I, I enjoyed what you said earlier about how the Claims commission obviously isn't a commission full of Idiots that, you know, would have claimed on this. We survived motion for summary judgment on this, as well as our hearing was awarded for the claimant for this particular situation as far as what I've sat here and listened today as far as UMS's council's got to say, honestly, it's arguments that they have made that they have previously lost. We made arguments against what they said, and we, we came out on top on this. The the video is a big deal. We sent out a spoliation letter and requested more to be saved. It was not saved. And the minute that we have shows that the door is already open and as Catherine, uh, Miss Harvey was talking about earlier, there is a duty to show more than that. And if we would see that there might be a different story, but the fact is it was not shown, so therefore, the rug could have been askewed, which it does show it's skewed over the doorway for that amount of time. We don't know how long because they didn't preserve the video for us. They brought in another, um, The lady they brought in as far as the door, she had no knowledge of how the door works. They made an assumption that it could potentially have been opened, but they can't prove it, um. It's, it's just not the video shows the. The rugs over the doorway. Also the emergency room entrance right there has security guards that are there right there looking for that. They immediately came to her assistance. They should have noticed that the door was sticking and it was already open. No one can say it was open. No one can say any of these things. Also, they make a big argument that the person that came in before her tripped on, caused the hazard. That's not the case. The hazard what is already there. Two other people almost fell like Miss Westcott poorly did. But unfortunately, they were lucky and didn't. They did not create that hazard. The hazard was already there. But I, I'm happy to answer any questions or to go further into detail as far as how far we've come with the commission as far as surviving summary judgment and the last period. Senator Hester. No more questions, but I, I will have a motion when, when you're ready. I think that's Senator Rice, I mean Senate, yeah, Senator Rice is lit up. Are you claim you said some other people almost fail. Did they notify somebody of a problem? Did they notify a security guard. 3 seconds to notify somebody. Did they notify somebody may have, but they did. There's so much assumption on this. Yeah, you're guilty by assumption to be preserved. We sent a letter from the law firm asking for the preservation of this video. And that's, I think, kind of what Director Irby was kind of getting We weren't given a fair case with no more video than a minute to view. I don't know what their video is and what my video is and it's a limited amount of time depending on how many cameras you got, how much movement I have. And all that, so Sometimes it's just not possible, but again, we're trying a case a lot on assumption and that happens. I, I said it, we're litigious society. And I'm not, not minimizing somebody getting hurt, but you can only do so much to try to be fair. They don't want somebody to fall. They don't want a lawsuit. But, but you're not saying that somebody you said almost fail, said anything to anybody. So I question that. Senator Clark, you're recognized. Thank you, Madam Chair. You said that, uh, two other people tripped. Uh, before this, uh, how do we know? You can see there, if you watch the video, the minute they provided, you can see their foot kind of catch and one person kind of catches themselves and the other person, you can just tell their foot's different. It's, you really have to see the video. Unfortunately, Miss Westcott came in though instead of being able to catch yourself or whatever, she just face planted and severely injured herself and is now forever. This is still impacted her life to this day for her job and everything she does from the injuries that has happened from this, but I mean the rug, if you see the video. The rug was already messed up. The emergency room or someone in there, the security guard or whoever should have noticed that the doors were not functioning properly. But you can tell in the video that their foot's kind of catching something, you just. They're just luckier than she was. And it's your belief or you have knowledge that when you sent a letter to. Save more video that they had that video to say to view it that day. They brought her to the hearing, but for some reason they still didn't say was my question, Uh, did they have, do you have knowledge that they had the video then told me the details on that. I just know that when we got the case, we sent out the proper documentation to preserve the video and you would think with the incident more than a minute of it would have been preserved. I could. Ask the same question to uh UAMS council at the time the letter was sent. Did was a video there. Uh, unfortunately, I do not have the letter in front of me to see the date on whether or not it would have still been available, but I can tell you that that letter was sent to no specific individual's attention just to UAMS. It did not go to Miss Hart's attention, who is the assistant director over the Office of Health and Safety at UAMS. It did not go to the risk management department, and it did not go to the legal department, they weren't specific enough, but. When did the somebody with proper authority received the letter. I do not know that. I have not been able to locate anyone on that campus who did receive that letter, which is problematic problematic because I would know that. Uh, if, if we received a letter because I can understand the problem didn't come to me to some other but, but where did it go from there? Uh, I would think you would have some answers there. So, uh, back, if I may, Madam Chair, uh, to the claimant's council. I've been in hospital, unfortunately last couple of weeks with a loved one, and I'm in the flooring business. And about the 3rd or 4th day I noticed and this is not, you know, it's a newer hospital. A new construction, uh, probably been there, you know. Probably been there 2025 years now. But you know, we put wood vinyl, we put vinyl looks like wood plank now rather than the old 12 and 12 tile, which is a great improvement. But I noticed nobody else would have noticed, but I noticed and not till the 3rd or 4th day because of the lighting. That there's undulations in the floor. That I don't know if it's a 16 inch, I don't know if it's an 1/8 inch, but I know that sometimes I drag my feet and although it's a fairly new floor. It's not completely level. And I could Anybody who's dragging their feet could write down this hallway. Catch their foot, uh, shouldn't, but you could because it's not completely level. Uh, how is this different? Are you asking me? Yes, I'm asking you. Honestly, the rugs that they put out, they remove and bring back every day. It shouldn't be the threshold is a metal, very obvious threshold of the door where the door opens and closes into. The rug getting over that is completely noticeable and completely different than what you're talking about exploring. My dad did flooring too. I'm kind of similar with what you're talking about when I was a child, but that's not something that an everyday person could notice, you or I may notice it, but the other 30 people in here may not shows the rug over the threshold and it should not be over the threshold. And how big was the rock? I'd say, I mean, it's one of those big like heavy entry rogues designed for them. But it's over the uh. So it's really hard for foot traffic. To move that type of rug up over the threshold. I would think so, yes. UMS counsel, do you disagree? It's pretty hard to move one of those rugs just with foot traffic. I, I would think so, yes. OK. All right. Thank you. Thank, thank you, Madam Chair. I want to go back because I don't think, I don't know if I heard the answer correct. He asked about the letter. I believe you said you have a dated letter, but do you know, you do not know who received that letter. Like you've seen a letter, but it was never. Addressed to anyone within UAMS. Am I correct? That is correct. It was sent to UMS and for those who've been there, it is a very large facility with a lot of people and unless it is targeted to the correct person, um, it can be very difficult to get to the right person within enough time. Our video footage is not preserved forever. We do not have the space to do that, uh, and Madam Chair, if it's appropriate, could I respond to a couple of the things that Ms. Gordon said. Can you do it Just a minute because there may be something else added Representative Kavanaugh, you're recognized. Thank you, Madam Chair. Uh, just for the record, we've talked about this letter, but nobody's given us a date. Can you tell us the date you sent the letter to UAMS. If you give me just a minute, I can, I can look it up on my computer, I'd like to know the date that you send it to and who you sent. It was addressed if I remember correctly, but I'll look to the claims department. Yeah, we'd like to know that information, please. In the meantime, while we're waiting on that, Speaker Shepherd. Well, that, that was basically my question is who is it addressed to? Was it sent certified? Certified return receipt and if so, what, what does the return receipt indicate. Thank you. OK, I found it. It is dated October 9th of 2017 and the incident happened on 9/16 of 2017. So a little over a month later once Miss Westcott. Came for our representation. And I think Speaker Shepherd had more detailed into that question. Yeah, I was it sent certified mail and did you get a and who was it addressed to? I would have to go back and look at our mailing thing. This was from a previous attorney that's no longer with the firm. I'm actually the 3rd attorney on this case, um. I've been here for the summary judgment as well as the hearing, but the initial representation with Scott, I was not. I assume we normally firm policy is to sens spoliation letters certified. I will say that. Singal with the questions you're dismissed, ma'am. You can. Thank you. I know you would like to respond. You're recognized. Thank you, Madam Chair. Uh, just a couple of comments to respond to. There were statements made about the, uh, doors being held open because the rug was over the threshold. However, there was no proof of that because there was no discovery conducted on that. As I explained, the doors were stationary. They were not bouncing in any way, which is what you would typically see if something is obstructing the doors. I would anticipate that those folks who work the doors on a regular basis. understand that button. Ma'am, you're dismissed from the table. um. And again, nobody had notified anyone at that, that area that there was a problem. While security is there, they're not able to focus on every single person who walks in, and that rug, again, you would have to watch the video yourself, I think, to make any different conclusions. Obviously, Ms. Gordon and I disagree. Uh, but there was no, she mentioned that UAMS provided no proof. UAMS was not responsible for providing proof in this case. The burden is on the claimant to prove the case, and they did not conduct a. discovery or provide any evidence to support what I consider to be a theory or a hypothesis. Thank you. Representative Kavanaugh, did you have a question? Yes, um, on a reg, thank you, Madam Chair, on a regular basis, how long do you keep your video? We have videos for different purposes throughout the campus and unfortunately, I've worked on many of those policies. So right now, as we sit here, I'm not sure if this one is under the 21 day, which obviously October 9th would have been beyond 21 days, or if it was on a 28 day. I, I do not know that as we sit here. OK, thank you. Senator Hester, we're back to you. I'd like to make a motion to reverse the ruling of the Claims commission and award 0. Do I have a second? Got a second, all in favor or any discussion? All in favor say aye. opposed no, I have it. Moving right along to E2, Miss Johnson. Thank you, Madam Chair. Item E2 is claim number 200817, Mary Ann Jones, a special administrator of the estate of Oscar O'Dell Bill Jones, deceased, and on behalf of the wrongful death beneficiaries of Oscar O'Dell Bill Jones versus Arkansas Department of Veterans Affairs. Claimants sought $2 million in damages related to a wrongful death claim. Claimant alleged that the Arkansas State Veterans nursing Home failed to meet the applicable standard of care, including basic nursing practices in its care and treatment of Mr. Bill Jones, leading to his death from severe sepsis caused by fecal bacteria. Respondent denied liability and moved to dismiss the claim. After a hearing, the claims commission found that the nursing home failed to meet the standard of care regarding Mr. Jones's care in 6 separate areas and that the the cumulative effect of these failures caused Mr. Jones's death. The commission awarded a total of $300,000 to Mr. Jones's estate and wrongful death beneficiaries, Respondent now appeals. Before you, before I get to you. I do want to make an announcement. No one comes through those doors unless they're asked to come to the table. We don't want people just coming up to the table without being called to the table. Miss Erby. Does the commission have anything to add? No, but I'm happy to take questions. Are there any questions? Seeing no questions. Do we have a motion to affirm the ruling of the claims commission as to this claim. I've got a motion in a second. Any discussion? All in favor say aye, oppose no. Motion carries. We will now move on to part F of the agenda, which contains one awarded claim, which has been appealed by the claimant, Ms. Johnson, please give us the, a brief description of the claim. Item number F1 is claim number 220374. Christine McAuliffe, a special administrator of the estate of David Kaine's deceased versus Arkansas Department of Human Services. Claimants sought $5 million in damages related to the death of Mr. David Keynes, an adult with multiple disabilities, a history of aggression, and the mental capacity of a child. Claimant alleged that the Boonville Human Development Center negligently caused Mr. Keynes's death when it habitually used personal restraints on Mr. Keynes during incidents of aggressive behavior and during one such incident, Mister Keynes choked to death on his own vomit while restrained. Claimant argued the sinner knew the risks, use of restraints posed to patients with disabilities and yet failed to enforce a policy reflective of those risks, Respondent denied liability and moved to dismiss the claim after a hearing, the claims commission found that the center breached its duty of care to Mister Keynes by willing to develop an appropriate plan of action to address the continual need to employ emergency procedures such as restraints and that it was foreseeable that the center's routine use of such emergency procedures could result in a negative outcome. The commission awarded Mr. Keynes's estate and wrongful death beneficiaries, a total of $650,000. However, because Mr. Kane's initiated the behavioral situation that led to the use of restraints, the commission considered comparative fault under Arkansas Code Section 166. 122 and assigned 60% fault to the center and 40% fault to Mr. Keynes, adjusted for this determination the commission's total award was $390,000. Claimant filed a motion for reconsideration, which the commission denied as it failed to set forth new or additional evidence not previously available. Claimant now appeals. Miss Harvey does the commission have anything to add? No, ma'am, I'm happy to take any questions though. Right, uh, Senator Stubblefield. Thank, thank you, Madam Chair, uh, well this is an unusual case. What is the, what is the policy of, of the human development center when it comes to uh calling emergency services whenever they have a patient that they know, uh. cannot be laid out flat who has a a health issue like Mr. Uh Keynes had. Knowing he could possibly. Suffocate on his own vomit by putting him on on the ground. How, how much, how much time do they allow before they call, uh, medical services. That may be a better question for DHS. I do know in this case, I believe it was when the nursing staff arrived at the scene that 911 was called, but I would defer that question to DHS council for more specifics. Can we call him up? Someone from DHS, please come to the table. State your name for the record and then you may begin. Hi, good afternoon, Melissa Weatherton, DHS. Rich Rose and DHS. I'm with the Office of Chief counsel. You heard, you heard Senator Stubblefield's question, or do you need him to repeat it? No, sorry, go ahead. With, uh, lawyers make the worst witnesses, um, now I heard, uh, Senator Soful's question. So in this particular case, um Mr. Keynes did not have a medical condition that would restrict us from using restraint measures at the Bloomvi Human Development Center. I think you guys are aware that that center is our center, that's the backstop of the DD system. That is the center where we take the hardest of the hard. So, the majority of clients at that center have an intellectual. disability and a significant behavioral, we're talking about the quality of the center right now. We're talking about a, a boy who lost his life. Ah How much time is there a policy there that human development center. Is there a policy there that allows them to wait so many minutes before they call for medical help. For a patient I will let Mr. Rezen is what's in the record. I'll say when we noticed someone's choking, we call for medical help. How much time before they are allowed to call. What happened as the committee's probably aware this is in Boonville. It's rural, it's a couple of miles out of the city. And so, um, The Preferences for the AIDS if there's an emergency to call the emergency, the, um, The medical staff because they're right there and in this instance, they were there within 2 minutes of the, uh, incident. It then when the nurses arrived. They and during this time they were providing CPR and trying to open up his uh Throat and remove the, uh, uh, vomit that was had had been there, but The They called 911. It took 13 minutes for 911 to arrive. That's why they call the medical team first because they're on campus. Uh, but do they have a written policy that they are not to call for medical help within so many minutes. That was the understanding of some of the um CNAs at the time. It wasn't they, that they were supposed to call the medical team first, and then when the medical team arrived 2 minutes later, they called 911. That has now been clarified since that incident, but um in this case, as I said, it took 13. minutes for not for uh EMTs to arrive. And I, I, I, if I may, Senator. The this was a uh a behavioral patient we call it duly diagnosed. It's, he was an individual with intellectual disabilities and a mental illness, and he was at Boonville because Boonville specializes in care for for people who have uh behavioral problems, and he had one and part of his inner uh Uh, individual program plan allowed for emergency procedures to protect him and to protect everybody else. This happened. In the lobby of the lunch room at lunchtime with every other resident there at the time, plus a lot of other aides and staff. And were they not aware of that? That after eating a meal. He was to stay upright for so many, so much time. Well, that was part of his, his plan, he had a condition, a gastric, we call it GERD. I can't remember what it stands for, but it's, it's reflux. And so there was a lot of testimony from his treating physician from the experts that that had nothing to do with his vomiting. He, he was, he did not have aggravated symptoms of GERD, which would uh cause him not to lay down. And what happened is he was, they had taken him out of the lunch room because the aide had noticed that he seemed to be getting agitated. They took him to the bathroom just to get him out of there because there was a lot of people. He used the restroom and then as they were going back in, he asked to calm down in the lobby, so they put him in a chair. In the lobby And the aid was A few feet away and all of a sudden he jumped up and lunged at the aid and that's what toppled him over. They did not put him on the ground. They tumbled to the ground and there was a lot of evidence of that and some representation and admissions from, uh, the claimants, uh, representatives that that's what happened. So we didn't put him on the floor. It, they, they. Toppled over. And he was still unfortunately, um, Being aggressive and so they just had to uh hold him down and keep him from using, uh, from hurting himself and others. He was, uh, 62, 248 pounds. And, and when did they first notice? That he was choking, so at what point there's no clock in the lobby. At a certain point in time, they noticed that he was not responsive anymore, and they immediately called the nursing staff. And we estimate, it seems to be based upon the evidence in the record. It was 2 minutes or less for them to get there from that call and the call was made as soon as they realized there was a problem here. Our Maeral Senator Johnson, you recognized. was, is there any other protocol besides your strength that you can use on the, on a grown man with uh mental and uh The the these can these issues. So there is an individual program plan each year revised, uh, to address these issues. There is a hierarchy of diversion, uh, chemical restraints if he seems to be getting actually. There was no time here. This was, he, he, we, it was unknown to the He was getting a slightly agitated in the lunchroom. They took him out. It appeared that he had calmed down while he was sitting there. So there was no time to call for medical to give him a chemical restraint, which is an injection, but it has to be authorized by a doctor. It takes more time than a minute or 2 or 3. And so there is a hierarchy, uh, but that was Not available in this emergency situation after, after, after using the restroom with the arch chair. After using a restroom, he requested to be placed in that lobby to calm down before he went back into the cafeteria. Correct. And then This Happiness. He launched, he charged different words were used, but basically he got up, he actually ripped something off, uh, some paper off the wall. It was right by a bulletin board. In the lobby and Just tackled the, uh, CNA, the, the, the staff, and they tumbled over because of where it was, there were other people around who saw what was happening and uh came to assist. And as soon as they realized there was a problem, they called the medical team. Thank you. Representatives Kavanaugh. Thank you, Madam Chair. Can you tell me, was there or is there a policy that, um, only supervisors call 911 at that location. I, I'll say no, that wasn't the policy, but I have to say that based upon the record that was some of the understanding of some of the staff at the time. And that's what I, what I mentioned had been clarified to staff since then. It was not the policy. It's basically call the medical team first because they can respond immediately, um, And, uh, but it, it was silent as what to do next and and I guess how did they get that misunderstanding. How did the staff get that misunderstanding. I don't know, but we've clarified. It was in the written policy. It just said call the medical staff first. I, I can tell you there was testimony in the record that they have, uh, and the reason for that, well, There was testimony in the record that it had taken, they've called 911 and because of where the ambulances might be at the time of the call. It could take a significant amount of time for it to get there. So they prefer to have, we have nurses there, we have doctors who can arrive within 1 minute and a half, 2 minutes, and that's why they want them to call first at the time. Now we can call everybody and it's clarified that they can. OK. And This gentleman, he, did he have a history of violent outbursts in the past? Yes, and he was program planned for that for several years and um Uh, the, the, uh, what we call emergency restraints is what this was, um. He, he had, uh, had that for years and he, they renewed it in 2019, which is the plan that they were under at the time. And my last question, Madam Chair, is, um, When was the last time he, do you have a record that he had had a violent outburst where he had attacked. Well, I, I, I, I don't, the, the, the file in this is boxes and boxes, but I can tell you that there were times where he threw a fire extinguishers, broke glass. He, he was care planned if you see the, the, all the care plans, uh, he, his television in his private room was behind a posy glass screen, uh, his mirrors, it was all there because he had torn them up and ripped them up and threw them and, and he He generally wasn't violent all the time, but he did have behavioral episodes and that's why he was care planned for those, and this is part of this was part of the care plan. OK, thank you. Represent uh, Senator Stubblefield to recognized. Can we, is it too early? Can we call the claimant's attorney with the claimant's attorney like to come to the table? State your name for the record. No, when you get seated, sir, on the. Thank you Good afternoon. My name is Josh Gillespie. I'm the attorney for the estate of David Keynes. Uh Is Mr. uh Keynes is, is he, uh, during all these turbulent, uh, times he had, has he ever injured anyone? Uh, never. We took depositions maybe 25 depositions. Most of which were employees of, of the Boonville facility, not a single person. Could identify a single time he harmed anybody. He had an IQ of 36. He had the mind of a of of his psychological examiner there at the facility, a guy named Mike Alves testified that he had The mind and approximately a 4 year old. But an IQ of 36, um, that's, that's in the record, that's in his, in his records there. Um, never hurt anybody. He loved the monkeys, toys. He believed in Santa Claus. Um. His family was one of the most involved families of any, uh, resident at this facility. Uh, weekly visits. He'd come home on holidays. Um, they really loved. Um, but, but no, had never injured anybody. What what about the uh, what about the time frame policy of calling. Right, well, there was a, a, a written policy and it's in, it's in the record written policy by the human development Center, right, and what the policy said was is that direct care staff are forbidden from calling 911 themselves. What they have to first do is notify. Uh, Boonville Medical personnel. And on the day in question. That was 3 LPNs. Um, so, Essentially, I created a timeline, a pretty detailed timeline here, pieced together by the testimony. But Approximately 11:27, he begins vomiting and choking. They're holding down or 11:26, he defecates himself while they're they have him pinned to the ground. They keep holding him. He's screaming the whole time. Three of them. One has has him by the, the, the side, one by the arms, one by the legs. Uh Soon after that, he begins vomiting and choking. They had him on his side. Well, he's vomiting, but they immediately put him on his back. And of course, gravity goes to work. Uh, and he started choking worse. His face turns blue. Uh, approximately 11:29. His face is getting darker. He does not appear to be breathing at this point. One of these three direct care staff. Who are administering this restraint in a lobby outside of the cafeteria finally calls over to the nurses' station, which is across campus in another building. They get one of these nurses on the phone. They're 3 LPNs, and they quite literally say the words he's not breathing. So These LPNs also don't call 911. 1 of them stays behind, two of them get in a car and drive across campus. To where Davy is dying. Because they need to see it for themselves, they say. And of course they get in there and they see that it is what, uh, staff said it would be. And uh 911 is finally they finally allow a staff member to call 911 at 11:37 a.m. The paramedic who arrives estimates that 8 minutes elapsed between the time. Day Starts choking and stops breathing and win 911. OK, let me stop you right there. There's approximately Between human development center in the closest hospital is about 3.5 miles. The boom of Medical Center. I, I'd have to take your word's 3.5 miles. So And 3 minutes they could have had him at the hospital. I, I would say that's fair. Some more in that time frame and even more significantly, paramedics are very, very highly trained, uh, much more, uh, an LPN is a is a is a much lower level. nurse below an R. A paramedic is trained in all of these advanced life saving procedures. They have something called a McGill's forcep. And that McGill's 4p. Eventually allowed the paramedic to open his airway. Now it was too late at that time. And DHS will say, well, because it took that long to open the airway that he, he would have died anyway, but the thing about a choking incident is it's not a static thing. Every is the paramedic testified, time is tissue. Every moment counts. It, if they had called 911 right away for all we know that ambulance could have been already closer to the facility. Traffic conditions might have been different. The, the vomitist lodged in his throat might have been uh positioned differently so that it was easier to open that airway. But we don't know because. He didn't get there. He didn't get the call until 8 minutes after, um, Mr. Can't stop, stop breathing. Gets there later and and is unable to save him. What another thing that I think is significant for this committee to understand is that this is not the first time something like this has happened at this facility. In 2016. Um, a woman named Jane Doe. Well, Jane Doe in the report, um, dies under similar circumstances. She's, she has a seizure. They think she's faking it, so 911 is not called for 10 minutes and she dies, chokes on vomit. Um, that was in 2016. That same year, Disability rights Arkansas. Publishes this report. And of course all this is part of the record. Bound to the past, the excessive use of restraint at Boonville Human Development Center, January 2016, disability rights publishes this. And then publishes a report about this this Jane Doe's death, which was remarkably similar, 911 is not called, uh, criticizing them for, for allowing her death. In this, I'll, I'll, I'll pair, I'll read one passage to you from this that I think is. is significant and that's. The The restraint use at the Boonville Human Development Center was approximately 25 times higher than at the other 4 human development centers in Arkansas. This has already led to injuries and it was going to lead to more injuries unless the problem was addressed. Boonville HDC fails to ensure that staff utilize effective tools to de-escalate situations leading to the use of restraints when other interventions, if implemented sooner, could eliminate the need for restraint. The Department of Human Services and its division of Developmental Disability Services has failed to provide the oversight and training to ensure that residents at Boonville HDC are not subjected to unnecessary and excessive restraints. Residents and staff have already been injured due to the current restraint practice at Boonville HGC. This is 4 years before David is killed. They go on DRA urges the state to take immediate action to address the culture at Boonville HDC and to instruct Boonville HGC to stop this inherently dangerous practice. And which leads to the fact that the people involved in this all admitted that their during their depositions. That they messed up. Um, the Two of the, well there's Mr. Matson who initiated this. Mr. Matson, for one thing, had a history of abusing residents just a year before this. Mr. Matson had been reported by a colleague named Jonathan McCutcheon, formally reported to the director of the facility for taking a a guy to a patient to the ground and then dragging him by the collar 75 ft down the hallway violently. Um, the director of the facility doesn't reprimand him, doesn't even force him to do retraining. They let him keep working there. Well this same Mr. Matson, who initiated this ground restraint. Also subjects Davy to numerous. Improper restraints in just weeks and months before this incident, one of which his supervisor admitted under oath she should have flagged him for. Carrie Johnson Miller should have flagged in, shouldn't let that one go. Well, 2 weeks later, Davies killed on a Tyler Matson restraint. What was CPR administered? I believe they attempted to administer CPR. While he was He was choking that he was on his side during the restraint. They put him on his back. I think they tried to do what are called upward thrusts. Um And I, I think they did attempt CPR. They didn't want him to die. I mean, that, you know. I, I don't think that for a second. They didn't want him to die. Now should Mr. Matson have been in this situation to begin with? No, he should have been terminated or or or retrained long before this, um. And The fact that So there's only 2 witnesses to how this started. There was nobody present when Mike, when Mr. Kaine supposedly initiated this, um, but if Mr. Matson it was just he and Mr. Matson. If Mr. Mattson is to believe. Are we gonna allow just continual testimony, we're gonna allow for questions and answers. Questions, yes, sir. So we'll move to the next question, Senator Dotson. Thank you, Madam Chair. Um, I, I actually have 2 here. I'm straight in front of you, um. The The Chemical restraint that you'd mentioned previously, um, Had that ever been Done on Mr. Kane before. Sorry I believe it has, um, but it, it takes time. The doctor has to approve it. Sure, but what I'm saying there, there had been that approved prior to physical restraint. In this particular instance there had been a history I I saw where there's been like, it was like 100 and I don't know, I'm missing where it's at in here, 187 times a prior restraint had been or prior aggressive incidents, yes, that's approximately is my recollection. Not personal restraint of those 43. Were some of those 77 involved mechanical trait. It's 43 involved personal restraints with those personal restraints considered the chemical restraints. No, the chemical restraint. No, yeah, I was just gonna say, so we've have to fall under office of long term care, CMS regulations just like a nursing facility. So anytime you touch a client and they can't move, it's a personal restraint. Anytime we touch someone and we restrict movement. It's a personal restraint chemical restraint is when it's injected. Or a pill is administered as that, but there had been other instances not noted in here where there had been chemical restraints on this individual before and then um. I'm hearing conflicting testimonies, uh, where you said. He initiated and attacked. For lack of a better word, but he tackled, um, the, the attendant there, but. It seems as if you're saying that. He was restrained. Uh Oh Because of who was attending him, Mr. Matson. Um What happened? Like, do you, do you say that he, or do you dispute the fact that he actually got up out of the lobby chair and, and tackled the attending the tackling part. Mr. Matson testified, um, He testified in the pre prior to that he gave statements to OLTC and Disability rights that, uh, Davy got up, had a temper tantrum, got up out of the chair, ripped some paper off of the wall and came at him aggressively. Um, he never testified that he tackled him. In fact, one thing consistent in Mr. Mason's testimony and all of his statements is that it was actually he, Mr. Matson, who first made physical contact with, with Davy by grabbing him by both of his, his arms and then. Mr. Mattson and they then proceeded. To the ground. Now Mr. Matson didn't admit that he intentionally took him to the ground, um, you say he did admit that did not So momentum from The Right, but it's been common practice to restrain Davy on the ground like that in the past, Mr. Matson had admitted to having done it before, uh, multiple times, just not in this particular situation regardless once he's on the ground. Um There was there, he keeps holding him there. And at this facility, they're required to use what's called the least restrictive method possible and they're only allowed to use. Methods of restraint that are approved. Um, so this form of restraint was a violation of federal, state, and facility uh regulations. We got the testimony of the, uh, person in charge of restraint, the NCI instructor at the facility who's in charge of training staff and restraint. He testified this was unnecessary. He doesn't teach this. There is no ground restraint. And then finally, I've heard two conflicting things was. The staff that we were part of the medical response team. I've heard them referred to as uh as uh what level of training are they? CNAs, RNs, LPNs, if I may, they were LPNs, LPNs, OK. Thank you. Representative Whittaker. Your turn. That wasn't that. OK. Thank you, Madam Chair. I'm right here. Uh, I'm gonna kind of try, hope to. redirect this to some. Logical point. Um, my question is addressed to you, Mr. Gillespie and Commission staff. Correct me if I'm wrong, this is brought as an appeal by the claimant. Not by DHS. So what And if I'm correct from my reading, you're also what you're contesting is the commission's reduction of the award based on contributory fault. Is that is that is that. Exactly. Uh, could you address that, please? Yes. So, The commission Found Davy to be 40% responsible for his, his own death, and they cited Kate, yes sir. OK All right, Madam Chairman. The commission found it to be 40 40% responsible for his own death and, and we take particular issue with that because it's a, it's a, well, it's a legal mistake. They got half of the analysis right under Arkansas law, a minor or somebody um with a a developmentally disabled individual, uh, is responsible for their actions and can be, uh, in, in comparative fault would apply to them, but, and this is the but, this is the other half of it. It has to be compared to the what would be A reasonable way to act for somebody of that same level of, um, intelligence or age. So here we have an individual with an IQ of 36, that's not that's, that's agreed upon, um, who operates on a 4 year old level. He requires 24 hour care. Um You know Needs help with literally everything, so the question is. If Mr. Matson is to be believed, hypothetically, let's say it happened exactly like that. He got up, charged at Mr. Matson, and then the momentum caused them to go to the ground. He keeps holding there. Is that is if if that was a 4 year old. Who did that? Would that be? Unreasonably dangerous behavior. For the average 4 year old to do, to throw a temper tantrum and, and, and, and, and come at somebody, um. I can't For the life of me see how that could possibly result in a a finding of 40%. fault, you know, it wasn't Davey's fault that they had this 911 policy. It wasn't Davey's fault that they had excessive use of restraint, physical restraint issues wasn't his fault that they were using illegal ground restraints. It wasn't his fault that they. ignored the fact that he vomited regularly after lunch. Or that they disregarded as GERD restrictions and it wasn't his fault that they, they retained this Mr. Matson who had a history of abusing clients including Davy. Um, and it wasn't his fault that After all of these emergency restraints, they didn't. create a plan to address why he's needing all of these, which they were required to do under 3011d and, and that is actually the, the. The fault that the commission Um, used to to find that the the facility caused his death, but there are all these other things taken together with the fact that, you know, IQ of 36, um, he'd never hurt anybody. There was testimony that he wasn't strong enough to open a jar of pickles. He had to have somebody, he didn't have the dexterity, the, the, the, he, he was 42, but he, he wasn't strong, um. You know, it, it 40% is harsh and uh his mom and sister are here and um. They don't want that in the permanent record of, of. Of um Their son's case that he was 40% responsible for his own death, and it is. Life wasn't worth even a million dollars. You know this, this wasn't a bump in a rug it at UAMS. This was. Um We, do you have a follow up, sir? Yeah, I just, I just want it. So I just wanna. Make sure we're we're all here. Your sole claim is that comparative faults should not be used and that your client should have been awarded the full amount of damages. Is that correct? Well, our claim. We're saying that. That comparative fault was applied incorrectly and that, and we would like for that to be eliminated or or greatly reduced and then secondly that the value placed on his loss of life was too low. Thank you. Representative Cozart. Thank you, Madam Chair. I, I just have a quick question y'all may have said this before, but how many times does something like this happen to Mr. Kane before that he's had, we know he had a regurgitation problem. Uh, did he ever come close to dying or having to be resuscitated, uh, be taken down. Has this ever happened? Is it on record that it ever happened before? I don't care who answers it. I can take that one, so in paragraph 72 of the commission's order, it said that the defendant had had Um, well, it, it, it lists and a long footnote. Descriptions of all the incidents of physical aggression in the year preceding the decedent's death, um, that there were 187 aggressive incidents at the center prior to 2020. And it said of those 187 aggressive incidents, there was only one episode of vomiting while restrained and that that had occurred approximately 8 years before the decedent's death. And he, and he did not get close to death at that time. OK, thank you there was nothing in the record about that. Thank you, Madam Chair. Senator history recognized. You know, I would like to say that this is a tragic situation and uh feel terrible with the family and, but, uh, clearly this, this, this young man had a significant amount of value, value enough that the people of Arkansas saw fit to pay for 24 hours a day care for him for 10 years in this facility. He had value. We did value, we do value him and and his life. Um But we had a 1087 situations in the year prior. I mean, if you, if you multiply that out, had there. That's the whole time or the year prior? That was prior to June of 2020. That was not the footnote one, in the commission's order. Just listed. The incidence of physical aggression in the year preceding the decedent's death. But there were 187 aggressive incidents. So 187 aggressive incidents, so staff would know. That, and you can see, he had a history of breaking TV DVD players and radios and televisions and windows, he couldn't have glass in his room. All, all these things, so it was somebody that staff knew to take serious, but maybe he was a 4 year old, uh, in his mind, but he was 6'2, 245 pounds, who's perfectly capable of injuring someone we talked about one of the three people that were involved in restraining him. Uh, but there were 3 professional adults there. Is the argument. Uh, that, that none of the three acted responsibly during that time. I, I'm asking this of Mr. uh, the defendant. Or the or the claimant's lawyer, yes. Senator Hester, um, The other two admitted a deposition that what they, they should not have done what they did, uh, Miss Amy Jones and Ryan Ryan Campos are their names, uh, Miss Jones. Testified that When she. Approached the scene, she saw Mister Matson holding Davy down and she testified that Davy specifically testified that Davy was presenting no significant risk of harm at that time. Yet she Her default reaction was to go and and grab his arms. Um, she testified that that was a mistake that she should have she was his supervisor, she should have ordered him to let him up. And that it was not the least restrictive method. And that Holding him there on the ground was a violation of their own policy. She admitted all that. Ran Campo similarly admitted that it was a violation of policy that it was not the least restrictive thing, that there's lots of things we could have done better in this instance. So I, I, I was sitting here thinking if it was my loved one on the ground. And they had a chance to get a licensed professional nurse there in 2 minutes from across campus or call 911 and wait 13 minutes or 8 minutes, I would choose 100 out of 100 times to have the LPN come from 2 minutes away. That that's being presented as an unreasonable or unrational policy. Uh, do you believe that's unreasonable to have a licensed professional nurse 2 minutes away and I call them first? Absolutely not, but everybody involved in this had cell phones. Why not call both? And 2 minutes is, is actually not accurate either. The nurses themselves. testified that it took longer than 2 minutes, another there was testimony that it couldn't have been done in less than 5 minutes for them to get there. But no, I, it's great that there are LPNs that can come and try to help, but what's unreasonable is to have a policy that doesn't allow staff to call for an ambulance in addition to that or simultaneous to that, OK? And I'm, I'm wrapping up my questions. Thank you, Chair. Uh, so the, the, the people of Arkansas saw fit, paid for 10 years. on the clock care for him. Everybody sitting in this room because he had value. was valued. We paid for that care. Now we should be punished as taxpayers because that care went wrong. That's the position. If your, your client. That's not, no, that's certainly not how I would. phrase that Senator Hester, I, I, my position is that all life has value. And yes, the, the state paid for, for his care Sometimes multiple jobs. Um, paying taxes. And she was one of those taxpayers, but He His, this was. There were egregious acts that went into this this man's death and yes, he'd been cared for by the state. And yes, um. You know, he, he wasn't going to have his as rich and fulfilling of a life as, as a 42 year old of of average abilities and intelligence, at least by an objective standard, but his life mattered. He was loved. He loved people. Um And so DHS, uh, if, if, if there are funds that are paid, um, my normal assumption is this comes out of your budget, which potentially probably comes directly out of Boonville, which would harm the current people at Boonville, the current, uh, residents there that are receiving care. Does this money come, if anything is awarded, come out of your budget? No, sir. It's my understanding this would not harm or the budget of Boneville, to be completely honest. I, I, I would like to say if I have a second, I mean we do completely disagree with almost everything. I'm gonna let y'all do it at the very end. I will dismiss him and then y'all will be able to. But first, uh, Senator Penzo, you're recognized. OK Yeah OK. Um, there was a little bit of a, Discrepancy Between two statements that were made about the policy. And that's one of the things for me, just, I worked in a rehab facility for 5 years. Different clientele, but I worked with dementia patients. I've caught a few fists to the chin before, um, for trying to get people out of bed, uh, you know, go for their Uh, you know, go to the gym to exercise or whatever. I did physical therapy. So, I, I understand working with someone with cognitive disabilities. Um I had a patient one day code. And if I'm not mistaken, the policy at our facility was I mean, crash carts flying down the hall, nurses are going in. These are our ends. Not LPNs, but yet they called the paramedics simultaneously. They were there within minutes to assist. So, I believe there was a statement made that There's written policy that they were not to call from one end of the table, and then the other is that was a miscommunication. So I would really like clarification on that because they should be called simultaneously, um, and if that's not the policy, it needs to be the policy going forward, but I mean, that, that's the, the reality of the situation is you, the, the RNs are trained. There was actually a doctor on site, but yet the paramedics are the ones that need to be caught, whether they're 13 minutes out or not, you call them simultaneously. Um, so anyway, I just would like that to be clarified by both of you, and I'd like to know what the reality is. I don't have the policy in in front of me, um. Uh, but it, it just says call, uh, the medical team, the, the, the on-site campus medical team first. It does not say. You're prohibited. I think that was the confusion and and Mr. Gillespie, in my opinion, is twisting this where it makes it sound like we say on a policy under no circumstances, do not call 911. It did not say that. It says call the medical clinic. There was an assumption that we learned throughout this case that that assumption meant don't call them too because we didn't specifically say it or or not say it. It has been clarified after this case to be very clear on our expectation that You do both at the exact same time. Yeah, because even, even if the LPNs or the RNs or whoever's there are able to stabilize the patient, the patient more than likely will need to be transferred to the hospital and there doesn't need to be a delay there either. So I mean, the, the argument that was made before that, you know, the LPNs are adequate. They are not adequate because they can't transport. So I just want that to be clear for everybody in the room, um, how things are supposed to work, um, I also do not blame, uh, Any patient with dementia that has struck me, um, that was my job. I'm in a situation where things are gonna happen. Um And I, I have a little bit, I'm not, I'm not saying I'm on the side of we need to increase the award that decision was made, but, uh, to, to blame. A pers a person like that for any, uh, a bit of saying they're responsible for their own death. I, I have issue with. So the, the 40%, um, uh, you know, this is more of a statement than asking you all a question, but I do, I do have concerns about Uh, anybody being In that mental capacity and having, saying it's 40% their fault when everybody in the facility knows their condition. So, um, and I'll, I'll go ahead and step down and let y'all answer my initial question. Senator Penza. I completely agree with you, um. I was personally deposed in this lawsuit. We never, we never been clients, right? We just don't. They're intellectually disabled. But we also made an argument in this case, um, that we did these holds correctly. We moved them to a side. our experts say we did these holds correctly. Um, we don't want people to die. But we don't take people at Booneville who aren't extremely difficult to manage. Um, and we evaluate it constantly. We track trends on all of our restraint data. We do constant debriefing. We have nurses present, we time them, we track them, we're constantly trying to lower them. But you don't send people to us that can live out in the community at the Boomville Human Development Center. That's why they come to us, um, and those staff are trained to take care of the hardest of the heart, but I completely agree with you, and I think I said it in my deposition. No, I do not blame disabled clients for their death ever. I don't care what they did, right? Um, they don't have the competency, um, to know what's going on, so, and especially not at that HDC. So, I, I, I agree, and I don't. I'm, I'm a, I was the director in this case. I was not part of the legal team. I don't do law work, but, um, I don't know how it got to that point, how that standard got to that point, but, um, we were not making the argument that a client was to any part to blame in their death. Uh, we did not make the argument, however, the, the claims commission looked at the applicable state statute that says in all cases of wrongful death comparative fault. I'm saying that when the decision was made. By, by the claims that That I I don't personally agree with that because like I said, the, the, uh, the, I'm not gonna even get into how, what holds were used and that kind of stuff, it, to me, the big issue was That decision of the 40% and that 911 was't contacted immediately. They should have been dispatched as soon as. The patient is not breathing. The LPN should have immediately called 911 before she went across campus. Uh, in my opinion. So, thank you. Senator Johnson, you're recognized. So, uh, Mr. Gillespie is is for the DHS representatives. So Mr. Gillespie has said the ground restraint was illegal. And he also Tried to Infer the testimony, uh, from the LPNs. was Different from the person who was on scene initially at the time. Uh If they, if those two were not there initially. How can they make, you know, A judgment call on on what happened. On what was. Happening 3 minutes ago or 2 minutes ago or 5 minutes ago. Could you please speak to that? Yes, I can, because that was a point that was uh. At, at the hearing at you all the depositions, the EMT who responded spoke to the LPNs, not to the CM CNAs, um, and because the LPNs had taken over the, the, uh, resuscitation efforts. And so when they got there, the sea, the LPNs were working on, uh, saving, trying to save, uh, Mr. Kane's life and the EMT. Took a minute to assess the situation and see what they could, and but he, he testified that he's dealing with a problem, how they got to that problem. He's not really interested in, it's just for history to relate to the hospital, but he's trying to work on the existing problem. Um, I do want to point out about the, uh, ground restraint being illegal, it wasn't office of long term care, um. Uh Uh, sent out Um CMS trained. And certified surveyor. On two complaint, uh, investigations related to, uh, this incident and, and Mr. Kane's death and the Office of long-term care, um, found no deficiencies in the treatment. It, it was a tragic. Incident, uh, that it was. But there was nothing, no violation of any federal statute or state statutes. And I would just that anytime we have any type of incident, right? Not any, um, I mean, death is the, the worst, but any type of significant incident. So we immediately put people on admin leave. We start our own investigation at the HDC Office of long-term care is immediately contacted, they send out CMS certified surveyors. We send all documentation to the Attorney General's office, um, immediately for them. to do a records review if they have an issue, they come on site. So in in this particular situation, there was no deficiencies found. They, they found that we were adherent to our practices and that we did the, um, personal hold correctly. Um, and this was a horrible. Death But it was not found to be caused by some inaction or action that was taken by the staff at the center. So, if I may, chair. So How can Mr. Gillespie as an officer of the court. This is not a body of court, but sat here. And infer that that is the case that you applied illegal restraint. Is that a misrepresentation or is that a, a lie? Can I address that, Senator Johnson? Absolutely. Well, it, it's, it's neither, sir, um. You said it. You said it. You said it. Well, no, I, I did say it and I, and I'm gonna explain why I said it and why it's true. Diane Elliott, the OLTC, uh, investigator, we deposed her. She had admitted it during her testimony that she did not question Mark Heis, who is the person at the facility in charge of restraint use and training staff and restraint use. She also did not question, um, Sandy Evans, who was the residential. Um, or the director of residential services. She testified that had she spoken to Mr. Heist and had she heard from Mr. He that ground restraints were not allowed. At the facility That would have changed the outcome of her. Of her, um, her investigation as it happens, Mr. He said unequivocally that Ground restraints are not allowed to facility for for these purposes for holding clients on the ground in a personal restraint, it's not taught. They're not trained in it. It's Unnecessary because they are staff are taught, um, an array of, of defensive mechanisms, blocking maneuvers, um. Sweeping maneuvers to to to deflect. Um, violent incidents and The federal regulations also require that any form of restraint that's going to be used. On a resident has to be specifically delineated in that residence plant in that residence IPP and it has to be specifically uh described and stated in the facilities policies. Well, you won't find ground restraints anywhere in a BHDC policy. You won't find the use of ground restraints anywhere in, in Mr. Kane's IPP that makes it a violation of. Federal regulations and hence the word uh illegal, but more importantly, the, the, the facil everybody I I deposed. Agreed, including the, the residential services director herself that. Ground restraints the way this one was done. is not allowed. It's improper. This is the, the, the person in charge of all residential staff there. She, she said that, that what they did was a violation of policy and it required retraining. Was, was a residential director. At this incident she was she wasn't there when it happened. She showed up later and she's Um, so you just deposed somebody that had no, uh, Critical knowledge of this incident. She is probably the person with the most knowledge of the incident outside of the 3. We posed everybody, we deposed everybody that was directly involved in it and we deposed everybody that showed up. Shortly after, and we deposed her because she was the she was the supervisor. She was the supervisor of these 3 staff members who performed the hold. Could you, could you please respond? Yes, sir. We don't, we don't use terminology called ground restraint, number one, that's part of the issue. There's 3 types of restraints mechanical, physical, and chemical. So we don't do takedowns to the ground. Um, that's not, it's not in our protocol, so I guess that's why however he deposed, that's why they're saying it's illegal. Yes, it would be illegal to take somebody to the ground like that. So they were falling. We consider it to be a physical restraint because the person's movement was, you know, because they were holding him anytime we're holding people, it's a physical restraint. Part of what was going on in this case, is like I said, we did an investigation, OLTC did an investigate Part of what was going on in this case, is like I said, we did an investigation, OLTC did an invest investigation. AG's office was notified, but just as you can tell Mr. Gillespie's reading out of disability right reports that are not part of the lawsuit, like that's not part of the court record. It's not part of a, you know, a failed investigation. So DRA comes in after the fact and then they do a mass. Interview on all of the um people at Boonville and put out a horrible report on the staff that then Mr. Gillespie pairs with. And then takes that report and then goes back out and interviews everyone. So, a lot of this lawsuit had disability rights wrapped up in it, and I got questioned a lot during my deposition about disability rights in their reports. So in some respects it's, it gets very confusing on, is he talking about a witness disability rights interviewed, and they put in a report or is it a person that he interviewed, in which time was that person interviewed? And how long since the incident happened. So because these poor people were interviewed multiple times by multiple organizations, um, because of um. Because of the death. I still have some more people in the queue. Can you sum it quick, like sum it up quick. I just wanted to follow up, follow up on that, that DRA did not even go to the facility to investigate at the time, and the report that counsel's referencing was from years earlier and in one of those reports, they, they were criticizing about the decay of the buildings and as you all know, we're building new buildings or we have built new buildings and rehabbed ones, um, but one of the pictures, interestingly, enough, and this is in the record, was a pick that DRA was complaining about was a picture of bags that they said was trash on the, on one of the floors of this building and it actually the according to the deposition, it wasn't trash, they were suplies for the residents in their work that they, they weave they weave rugs, and these were the materials that they used that DRA. Called trash. We don't. And I would like to follow up if possible when, when. OK. Representative Gasway, you're. Thank you, Madam Chair. A little under the weather so I. Apologize for the way I sound today, but bear with me. So my questions are first to. DHS And ma'am, I'm sorry. I, I came in a little bit late. I'm sorry. Weatherton, Miss Weather Miss Weatherton, I just want to Try to establish a few things. See if we might be able to come to some resolution here. One David, is there any dispute? That David Keynes Who is the Disabled decedent in this case. That he was a mentally incompetent adult. No, he meets the qualifications of intellectually disabled to be in that type of facility. OK. And when we refer to someone in, in particular, Mr. Keynes's case as being mentally incompetent. That is because it's my understanding in this case that he had the mind of a 4 year old. Is that correct? So we don't use incompetent because that's more of like a court standard, but so he was intellectually disabled, I'd have to go back and see what his IQ was, but that is what the. Claimant's attorney is saying, and that's fair enough, but, and, and to make sure that I'm using the correct terminology, your terminology. There's not any dispute that he was intellectually disabled and it seems to be fairly undisputed that he had the mind of a child, is that right? He was incompetent. I don't, I, I don't think we went into, I know the family uh had said that he had a low IQ, but I don't think any of the medical experts, uh, identified in the record. It's not, I don't, and we're not trying to be argumentative. It's not uncommon, right, to have be a much lower functioning level, um, when you have one of these disabilities that makes you intellectually or developmentally disabled, and many of the people at Boomville, yes, they're functional level is. much lower age than their actual. Age Yeah, and so at once again I just. So we can be clear and move on. It is undisputed that he was intellectually disabled, which is why he was in the facility. And of course, it's the contention has been that he had the mind of a child, if you will. That's relatively undisputed. Would you agree? Yeah, he he was at the facility, uh, Representative Gassway because he also had behavioral health needs. That's our facility that takes duly diagnosed clients. I'm gonna take your answer as a yes. You're nodding your head in the affirmative, so I'm gonna take that as a yes. I just wish I had that in front of me. I'm sorry. And so then I made some notes when you were talking earlier and you tell me, I want to make sure I didn't get this correct or I didn't get this incorrect, but I just made some notes based on what you said. And I wrote that you said we don't blame them and by them, you're referring to mentally or uh. Uh, intellectually disabled, the intellectually disabled. We don't blame them for their death. I guess that's the state's position, that's DHS's position, is that right? That's what you said is that is that not what you just said earlier. I don't have that wrong. No, no, you did not have that wrong. I said that in my deposition, I believe as well, right? I don't think it's right, just like we were talking about, I don't think it's right to Blame clients that are at that kind of mental capacity. for their for actions, death is what I wrote that you said. Let me keep going. We don't use and particularly specifically referring to the intellectually disabled, you said that they don't have the competency. To know What is going on those, do you, you just said that they don't have the competency to know what is going on, right? Well, to know the outcomes of their actions, right? This is gonna lead to that and then that'll lead to this, you know, that was when we were looking at this case and him lunging at the staff member, um, and falling to the ground, you know, I, I, no, I don't personally blame that disabled client for doing that. And then you said, because and it again, they don't have the competency to know what is going on that's what you said earlier, right? Oh, sorry. I'm, I'm gonna agree with you because you wrote it down. We're not even making, this is, this is my writing. You tell me if I got it right. We're not. Making the argument that they had. They, you know took that to mean the intellectually disabled. Had any part in their death. Our legal argument from the very beginning was that Our staff acted appropriate. So the point, the question before us today, you're not blame, you're not putting the blame at all. Sounds like the state on David Keynes, the intellectually disabled adult. You're nodding your head in the affirmative. And So the question before this body today, in my opinion, is whether or not the claims commission should have found David Caine's 40% responsible for his own death sounds to me as if you're not even making that argument. Uh, you've admitted that y'all aren't even making that argument that you don't believe that they are responsible for their own death because they don't have the competency to know what is going on. And that uh Anyway, those were the notes that I made, so. I just wanted to clarify that and then ultimately we'll have to decide whether or not we think the claims commission got it right at a 60-40. But, uh, just wanted to make sure that was your position. So thank you very much. Representative Beck, you're recognized. My question's been Senator Clark, looks like you're the last one. Thank you, Madam Chair. You work Your staff works with difficult clients. That's the whole. Idea. Uh, and has people trained to work with those, uh, in very difficult situations. Know the difficult situations are gonna come up all the time. And I think. Uh, I'm sympathetic to that. The And in this case. Uh, the This man ended up on the ground. Being held down That if I misunderstood that he's being held down on the ground, please. Well, the question is being held versus being restrained and not being able to get up because he's fighting, that's a terminology issue that's what Mr. I don't know that anybody else will have a problem with the terminology of being held on the ground or being restrained on the ground. He was being restrained on the ground. He has been restrained on the ground, so I, I think if I was being restrained on the ground, I would call it I was being held on the ground, but regardless, uh, he's being restrained on the ground. Uh, he's actually dying. We don't know this yet. He's not even dying quite yet, uh, but that's where we're going and staff. Believes he's still being violent because he's, he knows. That there's something wrong at this point. He's been violent many times before and so I don't know that I probably wouldn't know the difference myself. But there comes a time where he turns blue. I would have known at that point. And probably sometime before he turns blue. That there's something. Medically going on. So, uh, come back down to the policy. And I set policy at my business. I enforce policy at my business, and sometimes I'm horrified. But what my staff thought policy was. Uh, thought we thought we trained thought everybody knew, but nevertheless, but de facto. If my staff thinks the policy. is X. And they work with it being X. Then in fact, is it not X regardless of what. The boss Decided it was. Well, that's in effect what happened, yes. So in that regardless of changing the policy now, which I think is a good thing, regardless of you saying it wasn't the policy then, it in fact was the policy if they believed it to be the policy. Well, we did, we didn't know they, we, you know, it takes a terrible thing like this, to know that there was a misinterpretation to be afraid to call 919-11 not to call 911 in a situation like this, uh, because as Central Penzo brought out so well, you do both. What if, if somebody's at the point somebody's turned blue. I'm scared But, uh, uh, and I, and I'm mainly scared for them. I'm be, you know, there could be all kinds of repercussions, but if I've done everything I'm supposed to, the only thing I'm is. Is there's something seriously wrong here. Why wouldn't I call 911 unless I was afraid to. What Well, I'm not gonna yeah I'm not gonna assume, but We, we don't have. That's uh uh occurrences like this. I don't know that the staff understood the magnitude of what was going on at first. I started CPR and they called nursing, which Senator Clark, they probably do multiple times a day. Um, because you have to call nursing if you do any kind of restraint. You have to do nursing, um, if you need backup because someone's acting out. I don't have turned blue. I'm, I'm sorry I missed the possibly multiple times a day, but how many of them have turned that they're calling nurses on how they turned blue. I don't know that was, that was our words. I think that was the claimant's attorneys. Do you dispute the claimant's words that at some point he turned blue. They, the aides, the, the, the CNAs, uh, real, I'm not sure they use they saw he turned blue, they realized that he had was unresponsive and that's when they called them. Unresponsive could they say there was a problem with his breathing? Yes, that he was unresponsive, meaning he wasn't and they realized that it was the climate, so whether he was turned blue or I could see he wasn't breathing. Either way, that's a serious problem that that could very likely result in death, if not changed quickly. Correct? Yeah. So that's the, you know, the That bothers me. Uh, that whether we have it happen very often. Hopefully we don't have it happen very often. All the more importance that people know. That in the case that someone might be dying, we pull all the buttons we, we, we dial all the numbers. Does that make? Uh, I would hope that's what your policy is now. Yes sir. But it's not what you're employees and stood it to be them correct based upon the deposition, yes. Sorry about that. All right. Any more questions for, uh, the claimant's lawyer. If not, I'm gonna dismiss you from the table. And I'll let DHS, uh, finish up by, Whatever you're wanting to say right here, just do it in a timely manner, please. It'll, it'll be quick because I think, uh this case had. was extensively litigated. It had 27, 28 depositions. Most of the people were not really directly involved. Um, there were numerous experts, including the DHS expert, Doctor Casner, who the Claims Commission recognized as uh persuasive and um experience and knowledgeable, the claimants, uh, uh, medical expert, um, The Claims Commission found that her testimony was speculative. Um, the claims that Doctor Casner, testified To a reasonable degree of medical certainty. That the cause of Mr. Kane's vomiting was not due to the restraint. That's a key point I think. Um, I think that, you know, well, obviously we disagree with the timeline of, of the climate. The um Um, the, the EMTs took 13 minutes to arrive. They worked on Mr. Keynes for about, I can't remember exactly, but it was 8 or 9 minutes. And then after they somewhat cleared the airway. They didn't transport for another 11 minutes after that and then it took 8 minutes to get to the, to the hospital. So by that time, it was uh. There was nothing that the hospital could really do. Um. I want to also point out there were some statements by the claimant's counsel that there was abuse. There was no history of abuse by this CNA, OK? There was none, OK? Um, and so, They're apparently was an allegation that was just that was resolved and unsubstantiated allegation is not a history of abuse. That that's really all Senator Pizzo, you're recognized. Thank you. Was the, the 13 minutes for the EMS to get there, was that? From the time of the call or from the time of the incident? No, from the time of the call. And what was the time of the incident. To the time of the Well, that's where I guess a dispatch counsel and and DHS. Disagree because there was no clocks there. There's an emergency situation. Nobody's looking at it's not an emergency room where there's somebody documenting exactly to the second what happened. So there was estimates, but as soon as the aides realized he was unresponsive and had vomited and was choking. They called. The medical center on campus. It is estimated 90 minutes to 2 minutes, uh, excuse me, 90 seconds to 2 minutes was the time it took them to respond because they're right, they're just right up, up the, you know, in a couple of buildings over, um, so that's the, that's the timeline estimate. Once it's, when did that happen? Council thinks it happened at 11:25. We think that happened around 11:35. Nobody was looking at their watches. There was more important things to be doing at that time. And that so, but there wasn't a huge, there's no evidence of a huge gap in time or delay. Thank you. Senator Hester, you're recognized. make a motion. What's your motion? I, I've got a motion and a second. Any discussion? Speaker Shepherd. You're recognized. Uh, thank you, Madam Chair, just for, just for a point of clarification, uh. I would the Breakdown of the award among the claims because as I understand there is the estate and then there are 3 wrongful, there are 3 beneficiaries of the wrongful death claim. Would that be a portion pro rata based on the previous award. In other words, the 400,000 would be divided among the claimants based on the same percentage that currently exists in the ward as is. I'm agreeable to that. Representative Gassway, you're recognized. Thank you, Madam Chair, and I, I guess to speak to the motion. I agree with Senator Hester. And the no fault finding. Because it's been clear today. Through the testimony of DHS. The state That they are not even advancing the argument that Mr. Keynes was responsible for his death. So fair enough. Then the apportionment of the fault is 100% the state. 0% Mr. Keynes. The Claims commission made it 60-40. Well, but they also awarded 600,000. So what you see happening then is, but they don't, there's no argument to essentially modify the award. If we keep the same award that the claims commission originally gave. And find that Mr. Keynes was not at fault, then it should be 100% of the award that the claims commission awarded. That is only logical to do anything else is simply just semantics. We have to say you're not at fault, but we're still going to give you the money as if you were 40% at fault. Is not logical. And so because of that, I think that it, if we're finding that he's not at fault, which is fair. I agree with that. And we should also say that whatever the award was is. What you get. If to do otherwise is to say that you're at fault is to say you're not at fault, while still finding you at fault. And that's not fair. Senator Stubblefield, you recognized. I'll take your substitute motion. All right, I would, uh, Substitute the motions and substitute 600,000. For the 30. Do I have a second? I've got a second All in favor say aye. Ah. No, no. The eyes have it. Right. 3 hands do I have 3 hands. 123. Yeah, I've got 3. Senator Stubblefield. Yes. Senator Stubblefield votes yes. Senator Hester. No. Senator Hester votes no. Senator Blake Johnson, Senator Blake Johnson votes no. Senator King. Senator King. Moving to the first alternate, Senator Dees, Senator Dees. Senator Murdoch Senator Murdoch. Senator Penzo. Yes. Senator Penzo votes yes. Senator Rice. Senator Rice, Senator Gilmore. Senator Gilmore. Moving to the first alternate, Senator Matt Stone, Senator Stone. Senator McKee, Senator McKee. Senator Dotson. Senator Dodson votes no. Representative Jean. So Representative Jean votes no. Speaker Shepherd. Speaker Shepherd votes no. Representative Charlene Fight. Representative Charlene Fight. Moving to the first alternate representative per year? Representative per year? Moving to the second alternate, Representative Lee Johnson. Representative Lee Johnson. Representative Whittaker. No. Representative Whittaker votes no. Representative Beck. Yes Representative Beck votes yes. Representative Kavanaugh. Representative Kavanaugh votes yes. Representative Wardlaw. Representative Wardlaw votes no. Representative Cozart. Representative Cozart votes yes. Representative Gazaway Representative Gazaway votes yes. No, yes. The motion substitute motion fails. So back to Senator Hester's motion. Do I have a second? I've got a 2nd. Any discussion? Seeing no discussion, all in favor say aye, oppose no, motion carries. Thank you. We're moving to part G of the agenda contains one claim which was denied and dismissed by the Claims commission. The claimant in this case has appealed the decision. Ms. Johnson, please give a brief description of the claim. Thank you, Madam Chair. Adam G1 is claim number 240631, Eatrice West versus Arkansas Department of Transportation. Claimants sought $368 in damages after she hit an uncovered manhole on Allen Street in North Little Rock. Ardot denied liability and moved to dismiss the claim, and the claims commission dismissed the claim. Claimant filed a motion for reconsideration to which Ardot responded that the stretch of road in question is maintained by the city of North Little Rock, not the. state. The Claims Commission denied the motion on the grounds it did not set forth new or additional evidence not previously available. Claimant now appeals. Miss Erby, would you like to add anything? No, but I'm happy to take questions. Are there any questions? Seeing no questions, do I have a motion to affirm the ruling of the Claims commission. We've got a motion in a second. Any discussion, seeing no discussion, all in favor say aye, oppose no, motion carries. Now we'll move down to part H of the agenda, which contains two corrections corrections claims, which were denied and dismissed by the Claims commission, the complaint claimant in each of these has appealed the decision. Ms. Johnson, please give a brief description of the claim. Item H1 is claim number 221169, Bart Woodard versus Arkansas Division of Correction. Claimantsought $12,500 in damages for an alleged prison rape elimination Act violation alleging that a fellow inmate subjected him to forced sexual activity for a five-month period and that respondent failed to stop the abuse, Respondent denied liability and moved to dismiss the claim. The claims commission granted the motion and denied and dismissed the claim, finding that claimant testified he never reported the ongoing abuse to respondent and that once respondent was made aware of the situation, respondents separated claimant from the perpetrator, and the abuse stopped. Claimant now appeals. Miss Harvey does the commission have anything to add? No, but I'm happy to take questions. Are there any questions? Seeing no questions, do I have a motion to affirm the ruling of the Claims Commission. I got a motion at 2nd. Got a 2nd. Any discussion? All in favor say aye, no, for those that are opposed. Motion carries. H2 Miss Johnson. Item H2 is claim number 240,060, Harold Holloway versus Arkansas Division of Correction. Claimants sought $21,275 in damages related to alleged unlawful detention. He alleged that respondent failed in violation of policy to restore 6,726 days or 18 years of good time credit forfeited for disciplinary violations and that if this good time credit had been properly restored, his release date would have been March 24th, 2021. Claimants sought $25 per day from the state for his alleged unlawful detention. Respondent denied liability and moved to dismiss the claim, the claims commission granted the motion, finding that the issues of parole and good time credit are outside of the commission's jurisdiction. Claimant filed a motion for reconsideration, which the commission denied as it failed to set forth new or additional evidence not previously available. Claimant now appeals. Miss Irby, would you like to add anything? No, but happy to take questions. Are there any questions? Seeing no questions, do I have a motion to affirm the ruling of the claims. Second, got a motion and a second any discussion? All in favor say aye, oppose no, motion carries. Moving down to Adam H. I know, I don't, I'm sorry. Adams are members, uh, part I of the agenda contains two items which were submitted to the subcommittee after the November 1, 2024 deadline for the inclusion of this meeting's agenda. Do I have a motion to suspend the rules to make, take up these two items. That emotion, do I need, I need a second. All in favor say aye, oppose no, motion carries. OK. Adam I1A is a litigation settlement submitted to the Department of Finance Administration. Well, someone from the agency, please come to the table, introduce yourselves and present the report. Please state your name for the record, and then you may begin. Good afternoon, Alicia Austin Smith. I'm chief counsel for the revenue division of DFA Brad Young with the Office of Revenue Legal Counsel. First, thank you very much for taking this up, even though we were past the deadline for presentation, we would happily present this to you before the end of the year. We are here to present a settlement for your approval. This case involves a sales and use tax audit, DFA assessed a sales and use tax assessment for Asplundree Expert. It was for the taxable services of lawn care of non-residential properties. Aspllan protested to our Office of Hearings and Appeals, um, that we used to have back then, of course, the ALJ affirmed the assessment and then they filed this suit that's before you in Pulaski County Circuit Court. After discovery and a mediation, Asplin was able to provide documents to the department that allowed the department to substantiate, you know, essentially their protest of the assessment, so they were able to reduce down and agree that some of those services were not actually taxable services. They just needed that documentation from them. So with that adjustment, it will adjust downward the, the tax and the interest and Aspeland would pay $382,500. they would waive any remaining interest in Asplin would dismiss the circuit court litigation. So we are seeking your, your approval of this settlement and we're happy to answer any questions. All right, are there any questions? Singing no questions, do I have a motion to review motion. I need a second. Got a second, any discussion? All in favor say aye, oppose no, motion carries. Thank you. Members item I2A is a negotiated settlement agreement, Ms. Johnson, please give a brief description of the claim. Adam I2A is claim number 230,400, Caitlin Spicer versus Arkansas Department of Transportation. Claimants sought $100,000 in damages related to a traffic collision, claimant alleged that an R dot vehicle driven by an RO employee failed to yield to her vehicle when turning left across a highway and that as a result her vehicle was totaled and she sustained injuries. Ardot did not dispute liability and requested a hearing to determine the amount of claimants damages. After the hearing, the party agreed to a full and complete settlement in the amount of $95,000. The Claims Commission entered an order approving the settlement agreement and referred the award for review and placement on an appropriation bill. Miss Herby, would you like to add anything? No, ma'am, but I'm happy to take any questions. Are there any questions? No questions. Do I have a motion to affirm the ruling of the Claims Commission as to the claim. I've got a motion. 2nd, got a 2nd. Any discussion? Seeing no discussion, all in favor, say I. Opposed now, motion carries. This concludes the items on our agenda, seeing no further business meeting is adjourned.