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Pursuit of Justice After Child’s Death Brings Gap in State Law to Light

Heather and Zac’s first born child, Roger, was dropped off at a home day care facility in Dallas, Texas. He was seven and a half months old.

Roger was set down for a nap in the crib room with the other children around 1:30 p.m. Unfortunately, Roger could not sleep and began to cry. The owner of the day care removed Roger from his crib. She then took him to a second bedroom; she swaddled him, set him on his side on an adult bed, and left him unattended and unmonitored—all of these conditions are violations of industry regulations and/or standards of care.

Approximately two hours later, a coworker entered the bedroom to wake Roger. She found him on his face and unresponsive. When EMTs arrived, they noted lividity on Roger’s forehead, nose, and cheeks, indicating he had died some time before.

Although the owner of the facility initially spoke to first-responding police officers, they refused to speak to detectives going forward. The family was left without answers and retained Rob Crain and the team at Crain Lewis Brogdon, LLP to help get information.

Initially, due to the lack of information from the defendant, the medical examiner’s office was unable to explain what happened to Roger. Rob gathered as much evidence as he could find and submitted it to the medical examiner’s office.

This prompted further investigation that ultimately led to the facts coming to light—specifically the information that Roger was set on his side, thus left in a precarious position to easily roll on his face. Because he was swaddled, Roger was unable to move to get air. The medical examiner’s office ultimately ruled that Roger died from asphyxia.

More significantly, this case highlighted a deficit in state law—although child care “centers” in Texas are required to carry $300,000 in liability insurance, child care “homes” are not required to carry liability insurance.

Unfortunately, the owner had no assets to recover. At the end of the initial discovery phase, it was clear that any verdict would not be recoverable.

Heather and Zac are about helping others. Heather is a physician and chose her fellowship in Malawi, Africa, to treat indigent women. Malawi is one of the poorest countries on the planet. Heather and Zac left for Malawi shortly after Roger died to help others with little monetary return.

This case troubled Heather and Zac, as they were concerned about future children being injured, as well as parents being unable to pay for medical expenses associated with those injuries.

The defendant fought the case with attorneys from a respected firm in Dallas. To take this case to trial required expert testimony to prove the standard of care, as well as expert testimony to prove causation of injury. Rob chose to prepare this case for trial, bring the necessary experts, and prove his case, all the while knowing the firm would not be returned any of the money spent in this endeavor. Rob’s mission was to acquire a verdict on behalf of Heather and Zac and take this issue to the state legislature to require home child care facilities to carry liability insurance.

At trial, the defendant and her attorneys challenged all aspects of the case. Rob and the trial team presented a forceful case on liability, as well as deftly presenting the heartbreaking damages associated with Roger’s death. The jury responded.

The jury found the defendant negligent in her handling of Roger. The jury awarded $71,000,000.00 in compensatory damages to Heather. The jury also awarded $71,000,000.00 in compensatory damages to Zac. According to a review of data from VerdictSearch, the $142,000,000.00 verdict is the largest reported compensatory damages award in a child death/negligence case in their nationwide database.

Heather and Zac bear the daily heartbreak that only parents who have lost a child can understand. Following Roger’s death, they moved forward with their lives, helping others. It would have been easy for them to dismiss this case knowing there was no monetary award available. Instead, they chose to fly home from Africa to participate in a trial. They did so in the hope of helping others in the future. They did so knowing this process would reopen deep emotional wounds.

The large verdict brought significant media attention to standards required to be followed by all child care facilities. It was important for Heather and Zac to make others aware of the dangers of swaddling children and placing them on their sides.

As planned, Rob and the family presented materials to a state lawmaker to propose changes in the laws and require “home” child care facilities to carry some minimum insurance if they cause injury or death to the children in their care. This work is ongoing, but one thing is for sure: Heather and Zac’s efforts will continue to make child care facilities safer for the millions of children throughout Texas and beyond.

In the aftermath of this verdict, the Dallas Trial Lawyers Association presented Rob with their prestigious John Howie Award for his “courageous pursuit of justice in the face of adversity.”