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Judge: Woman died from leaving West Duluth care facility

Dale Gerard (second from left) is pictured with her sons Kelly (left), Matt and Mark. Photo courtesy Mark Gerard

Dale Gerard died as a direct result of leaving the Wesley Residence, a judge ruled recently in an ongoing wrongful death lawsuit filed against the West Duluth assisted-living facility by the woman's family.

Sixth Judicial District Judge Mark Munger granted partial summary judgment to Mark Gerard, the son who filed the negligence suit against the care facility in February 2016.

Dale Gerard, 74 and stricken with dementia, disappeared from the Wesley Residence in July 2013. After months of searching, her remains were found in the Lincoln Park neighborhood in April 2014, near the area she was last seen getting off a bus.

The lawsuit alleges that staff at Wesley Residence was negligent in failing to adequately secure the building and allowing Gerard to leave unattended, in violation of established care policies.

Andrew Gross, a Twin Cities attorney representing the Gerard family, called the ruling an "important victory" and said it will narrow the scope of the issues a jury will be asked to decide at a trial scheduled for August in Duluth.

"It means the jury will not have to answer the question of what led to Dale Gerard's death," he told the News Tribune. "I think this is important for the family to have it established that she died as a result of leaving the facility."

With the ruling, Gross said, the jury will essentially be left to decide whether Wesley Residence was negligent in allowing Gerard to leave — and, if so, the damages that are warranted.

"We know that she left, and we know that she died because she left," he said. "Was it the facility's negligence that caused her to leave? Our position, of course, is yes. But that is what the trial will center on."

Gerard, who suffered from a number of physical and mental health disorders, disappeared from the facility at 5601 Grand Ave. on July 20, 2013. Family members and local authorities urged the public's help in locating her, but efforts were unsuccessful for several months.

Gerard's body finally was found on April 15, 2014, in an area along Piedmont Avenue, about three miles from her home. The suit indicates that her "mummified " body was caught in a chain-link fence.

Robyn Johnson, a Twin Cities attorney for Wesley Residence and Hermantown-based parent company At Home Living Facilities, did not respond to a request for comment on the case last week.

However, the defendants earlier asked the judge to determine that Gerard died "as a direct result of exposure."

"Ms. Gerard did not die because she left the facility and got on a bus," Johnson wrote in a memorandum. "She died because after she got off the bus, she attempted to go under a fence, got stuck and then died due to exposure to the elements."

Munger did not agree, citing two expert medical opinions submitted by the plaintiffs. Both reports, while listing factors such as exposure, dehydration and emotional stress as factors, cite Gerard's departure from the facility as the main cause of her death. The defense did not provide any expert testimony to counter those opinions.

"While each of the two medical experts define ... differently the precise medical cause of Ms. Gerard's death, both conclude unequivocally that but for Ms. Gerard's elopement she would not have died as she did," Munger wrote. "Based upon the record before this Court it is clear that Ms. Gerard's elopement was the beginning of the sequence of events directly leading to her eventual demise."

The suit alleges that Gerard required care for "wandering, orientation issues, anxiety, verbal aggression, physical aggression, repetitive behavior, agitation, self-injurious behavior and property destruction."

In response to safety concerns raised by the family, the facility established a "service plan," which stated that she was "to be confined to Wesley unless accompanied by family or staff," according to the complaint.

In addition, the family purchased a "WanderGuard " bracelet that would alert staff if she tried to leave through an exit equipped with proper technology. However, the system was ineffective because not all doors were linked to the technology, and Gerard learned how to disable the bracelet, Gross said.

The suit states that the bracelet was still on Gerard's ankle when her remains were found.

A Wesley Residence employee reported to the Minnesota Department of Health in a subsequent investigation that the WanderGuard system created a "false confidence " for family members. She said the facility had received a quote for "thousands of dollars" to fully implement the system, but had not done so.

The health department, however, did not issue any sanctions against Wesley Residence, finding that Gerard was her "own guardian" and that it was "unclear how and why the client left against medical and family advice."

The case is scheduled to go to trial Aug. 8. Gross said he expected it would take three or four days.