News Feature

Portland
Originally published in The Weekly Packet, September 6, 2012
Timetable outlined for PNH legal matter
Decision not yet made on intervener status

by Faith DeAmbrose

As the towns of Penobscot and Blue Hill wait to learn whether or not they have standing in the state’s lawsuit that aims to close the Penobscot Nursing Home and sell its bed rights to a for-profit company seeking to build a new facility in Bucksport, information continues to trickle in.

As the result of a case management conference held last month, Superior Court Justice Andrew Horton laid out a timetable for how the case would likely proceed.

The matter at hand stems from a court motion filed in April by the Maine Department of Health and Human Services against the owner of record of the Penobscot Nursing Home, Connecticut-based ELRCare. According to court documents, it seeks to lift the court-appointed receivership, in place since 2008, in order to “close the Penobscot Facility when a suitable alternate placement for the residents becomes available in nearby Bucksport, Maine.”

The towns of Penobscot and Blue Hill believe they are stakeholders in the outcome of such a decision and therefor have filed as “interveners” in the hopes of gaining access to the legal proceedings.

According to a Case Management Scheduling Order filed August 1, the case is slated for an Alternative Dispute Resolution/Settlement Conference in October. A list of all potential witnesses and the anticipated testimony for DHHS and its court appointed receiver, Sandy River, must be submitted to the court by September 10, with all other parties—including the towns of Blue Hill and Penobscot—filing the same by October 1.

In agreement of the participating parties, and reiterated in a letter accompanying the scheduling order, the towns’ attorney, Diane O’Connoll, told the towns they could participate in the October conference.

“During the case management conference, Justice Horton opined that the Towns did not have a strong case for intervening as a party and taking part in an evidentiary hearing; however, he did strongly suggest they should at least be parties in interest … everyone agreed that all could attend the settlement conference in October.”

The towns will be allowed to participate in a settlement conference, but it is unclear how much further they will be allowed to go.

Regardless of whether the towns of Blue Hill and Penobscot gain intervener status, the case will move ahead with a December 3 deadline for the completion of discovery. A pre-hearing conference will be scheduled in late December and “unless otherwise ordered by the court, the testimonial hearing on the motion to close will occur in January 2013, according to court documents.

Also in the document filed, the judge will recuse himself from the actual trial due to “connections” he has with the First Atlantic Corporation. While not a direct party to the proceedings, FAC could potentially benefit from the decision as it stands to gain assets from a closed Penobscot Nursing Home. The judge said that due to the fact that he has a relative in a FAC facility and has had a “long-standing social friendship” with an officer of FAC he will re-assign the trial coverage. He will still serve as the settlement judge.