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CN-EJ&E Backgrounder

CN’s EJ&E transaction is good for Chicago

The transaction would significantly improve the fluidity of rail operations in the Chicago region, resulting in faster transit times and more reliable service for rail customers. It would enhance the competitiveness of businesses in the region that use rail service, while bringing some relief to communities that have more than their share of freight trains today.

The Chicago area is the transportation hub of North America. One-third of U.S. products shipped by rail move to, from, or through the Chicago area each year. Rail traffic in this region touches five million jobs nationwide every year, $782 billion in output and $217 billion in wages. (2005 CREATE Feasibility Study)

But it can take a freight train more than 24 hours to travel the 30 miles from Chicago’s north side to its south side (Howard Street on the north and 127th Street on the south). During the same time period, a CN freight train can travel from Chicago to New Orleans (about 900 miles).

If Chicago regional rail capacity and congestion are not addressed, studies suggest that the Chicago area will lose $2 billion in production and 17,000 jobs over the next two decades. (2005 CREATE Feasibility Study)

The transaction has more neighborhood benefits than negative impacts

The transaction would provide reciprocal environmental benefits – for every community along the EJ&E line in the suburbs of Chicago that would see increased train traffic, nearly double that number along CN lines in inner Chicago would experience a traffic decrease. That means roughly one million people would have additional trains in their communities, but more than 2.5 million would have fewer trains. In fact, roughly 60 communities inside the EJ&E arc would benefit from reduced train traffic as a result of the transaction.

CN’s EJ&E transaction will advance the objectives of CREATE

Better use of the EJ&E would provide a head start for the Chicago Region Environmental Transportation Efficiency (CREATE) Program. CN is committing $400 million of private-sector investment to create capacity on the Chicago rail network and by removing CN rail operations from downtown Chicago. The government has not provided comprehensive funding for CREATE, however. Without such funding or some other congestion-reducing initiative, increased rail congestion is expected in Chicago and the inner suburbs, with increased delays to motorists and increased train idling in these communities. Without moving trains onto the EJ&E, Chicago will continue to have high levels of rail operations in more densely-populated communities and less efficient rail operations.

CN is committed to addressing the environmental impact of the transaction

CN has already volunteered to provide reasonable mitigation for the significant adverse impact of the transaction, as measured by the sound standards used by the STB in prior cases. CN has committed roughly $40 million for such mitigation, in addition to the $300 million it would spend to acquire the EJ&E and $100 million for integration, new connections and infrastructure improvements to add capacity on the EJ&E line and allow network synergies to be realized over time.

In August, CN reached an agreement with the City of Joliet – a community along the EJ&E line – that resolves the city’s outstanding concerns related to quiet zones, operations, and communications arising from the transaction. CN continues to negotiate voluntary mitigation agreements with many other willing communities along the EJ&E, and remains an active participant in the STB’s environmental review of the transaction.

CN has undertakings with Amtrak, Metra and Gary/Chicago International Airport on infrastructure access and service matters arising from EJ&E transaction

􀂃 CN has pledged to Amtrak and the STB that, after acquiring the EJ&E, it would permit the federal passenger train company to remain on approximately 11 miles of CN’s St. Charles Air Line route, following the re-routing of CN trains off that line and onto the EJ&E, until the Grand Crossing or other alternative acceptable to Amtrak is available. This preserves Amtrak’s access to Chicago’s Union Station and enables Amtrak to continue providing service to and from downstate Illinois cities such as Champaign and Carbondale. CN also agreed to cap Amtrak’s costs for maintaining this line at its current levels, indexed only for inflation in future years.

􀂃 CN is having continuing discussions with Metra and, upon CN’s acquisition of control of the EJ&E lines, has committed to reaching an agreement that would permit Metra’s proposed STAR Line commuter service, should it receive government approval and funding, to jointly use enhanced EJ&E rail lines, which is Metra’s preferred option. Thus, the EJ&E transaction would not impede the STAR project. Furthermore, moving CN freight trains off its existing lines and onto the EJ&E could make it easier for Metra to expand North Central Service Line service to communities such as Wheeling, Buffalo Grove, Vernon Hills and Mundelein.

􀂃 The expansion of Gary/Chicago International Airport (GCIA) can now proceed since the signing in June of a four-party preliminary memorandum of understanding (PMOU) between GCIA, EJ&E, CSX Corporation, and Norfolk Southern Corporation. The PMOU provides a comprehensive framework for relocating the nearby EJ&E line, a long unresolved matter that had been a key concern raised in opposition to the CN/EJ&E transaction. CN assisted EJ&E in the negotiations and is committed to honor the terms of the PMOU upon regulatory approval of the EJ&E acquisition and to carry out the needed line relocation.

* * *

CN and U. S. Steel, the indirect owner of the EJ&E, announced on Sept. 26, 2007, an agreement under which CN would acquire most of the EJ&E for $300 million, subject to regulatory approval by the STB. CN has committed an additional $100 million for integration, new connections and infrastructure improvements to add capacity on the EJ&E line and allow network synergies to be realized over time. CN has also committed roughly $40 million to mitigate the impacts of increased train traffic along the EJ&E. More information on the transaction, including a map of the areas served by the EJ&E and CN, is available by clicking on the EJ&E Acquisition icon on the About CN section of its website www.cn.ca/About CN

Forward-Looking Statements

This news release contains forward-looking statements. CN cautions that, by their nature, forward-looking statements involve risk, uncertainties and assumptions. In addition to the other assumptions contained in this release, the Company believes the U.S. economy is currently experiencing recessionary conditions, but assumes that it will recover within the next six to nine months, and that the global economy will grow at a moderate pace throughout this period. The Company cautions that these assumptions may not materialize. The Company’s results could differ materially from those expressed or implied in such forward-looking statements. Important factors that could cause such differences include, but are not limited to, industry competition, legislative and/or regulatory developments, compliance with environmental laws and regulations, various events which could disrupt operations, including natural events such as severe weather, droughts, floods and earthquakes, the effects of adverse general economic and business conditions, inflation, currency fluctuations, changes in fuel prices, labor disruptions, environmental claims, investigations or proceedings, other types of claims and litigation, and other risks detailed from time to time in reports filed by CN with securities regulators in Canada and the United States. Reference should be made to CN’s most recent Form 40-F filed with the United States Securities and Exchange Commission, its Annual Information Form filed with the Canadian securities regulators, and its 2007 Annual Consolidated Financial Statements and Notes thereto and Management’s Discussion and Analysis (MD&A), as well as its 2008 quarterly consolidated financial statements and MD&A, for a summary of major risks.

CN assumes no obligation to update or revise forward-looking statements to reflect future events, changes in circumstances, or changes in beliefs, unless required by applicable laws. In the event CN does update any forward-looking statement, no inference should be made that CN will make additional updates with respect to that statement, related matters, or any other forward-looking statement.

CN – Canadian National Railway Company and its operating railway subsidiaries – spans Canada and mid-America, from the Atlantic and Pacific oceans to the Gulf of Mexico, serving the ports of Vancouver, Prince Rupert, B.C., Montreal, Halifax, New Orleans, and Mobile, Ala., and the key metropolitan areas of Toronto, Buffalo, Chicago, Detroit, Duluth, Minn./Superior, Wis., Green Bay, Wis., Minneapolis/St. Paul, Memphis, and Jackson, Miss., with connections to all points in North America. For more information on CN, visit the company’s website at www.cn.ca.

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Contacts:

Media Investors

Karen Phillips Robert Noorigian

Vice-President Vice-President

North American Government Affairs Investor Relations

(202) 347-7196 (514) 399-0052

Labels: Canadian National, CN, EJ and E RR

STATE OF ILLINOIS }
}
COUNTY OF COOK }


I, Vick Lombardo, being duly sworn on oath, depose and state as follows:


1. I have been employed as a Special Agent with the Federal Bureau of
Investigation (“FBI”) for approximately ten years. In connection with my official duties as a Special Agent with the FBI, I investigate criminal violations of federal bank and wire fraud statutes, including but not limited to, Title 18, United States Code, Sections 1343 and 1344. I have initiated and participated in criminal investigations involving the execution of search warrants, the review of subpoenaed financial and real estate documents, physical surveillance, arrests, and convictions. Based on my training, experience, and participation in these types of investigations, I am familiar with the techniques used by persons engaged in such unlawful activities.

2. This affidavit is submitted in support of a criminal complaint and application for warrant to arrest CHARLES H. LANDWER, JR. (“LANDWER”) for wire fraud, in violation of Title 18, United States Code, Section 1343. Because this affidavit is being submitted for the limited purpose of obtaining a federal arrest warrant, I have not included each and every fact known to me concerning this investigation. I have set forth only the facts that I believe are necessary to obtain an arrest warrant.

3. The information contained in this affidavit is based on my personal knowledge and observations accumulated during the course of this investigation, including my review of records and documents, my training and experience, and information conveyed to me by witnesses and other law enforcement personnel. This affidavit does not include every fact observed or known by me or other law enforcement officers.

4. In addition, this affidavit incorporates by reference, as if fully set forth herein, all of the information provided in the affidavit previously filed in support of an application for the issuance of a warrant to search the premises located at 1225 Oak Hill Road, Unit A, Lake Barrington Shores, Illinois 60010 (the “Search Warrant Affidavit”), which is attached to this affidavit at Tab 1.


5. As set forth in more detail below and as previously described in the Search Warrant Affidavit, in connection with this investigation, law enforcement authorities have obtained credible and reliable evidence showing that, since as early as September 2002, CHARLES H. LANDWER, JR., defrauded at least 17 individuals of more than $2,400,000 in personal funds and home sale proceeds by falsely representing that LANDWER was using their funds to settle debt and/or investing their funds in LANDWER’s real estate business and other unspecified investments. In fact, LANDWER never intended to use, nor did he ever use, the victims’ money for investment or settlement of debt as represented, and instead converted the victims’ funds to his own benefit. In doing so, LANDWER knowingly caused writings, signs, or signals to be transmitted by wire or radio communication in interstate commerce.


6. As described in more detail in paragraphs 13 to 29 of the Search Warrant Affidavit, LANDWER defrauded Victims KD and ED by fraudulently transferring ownership interest of their property at 1902 Candleberry Lane, Yorkville, Illinois, 60560 to himself, without the consent or knowledge of Victims KD and ED, and subsequently securing a mortgage loan against 1902 Candleberry Lane, Yorkville, Illinois, 60560, to fraudulently obtain $282,522.

7. According to Illinois Secretary of State records and RNB title commitment documents, beginning in about May 2004, Victims KD and ED have owned and resided at 1902 Candleberry Lane, Yorkville, Illinois. Victims KD and ED attained ownership of the property through a purchase financed with an adjustable rate mortgage held by Chase Home Finance in the amount of $346,500. In about June 2005, after Victims KD and ED fell in arrears on the mortgage loan, and foreclosure proceedings commenced against 1902 Candleberry Lane. According to Victims KD and ED, they were unable to refinance their property because their credit was poor, and a Sheriff’s Sale of their property was scheduled for March 2006.

8. According to Victims KD and ED, in or around February 2006, Victims KD and ED were contacted via flyer mailed to them by LANDWER, whom they did not know. The letterhead was from the Accurate Financial Group, 360-23 W. Schick Rd., Suite 120, Bloomingdale, Illinois, 60108. In the flyer, LANDWER advised,

“We have assisted homeowners like you who are in very real danger of losing their homes. We can help you save the home you have worked so hard for, but you must take action NOW.”

9. Victim ED called LANDWER on the telephone number reflected on the flyer. LANDWER promised to refinance their property at a lower, fixed-rate. LANDWER also said that at the closing and as part of the refinancing, they would obtain equity out of the property to further settle their outstanding debt. Shortly after talking with LANDWER, Victims KD and ED signed documents to refinance their home through LANDWER and Accurate Financial Group.

10. Victims KD and ED received via fax a letter from LANDWER, dated March 3, 2006, on The Accurate Financial Group letterhead, signed by Charles H. Landwer, Jr. In the letter, LANDWER claimed,

“I have been successful in saving your home and stopping the Sheriff’s Sale. . . . We have begun dealing with the legal department of Chase Home Finance, LLC in San Diego, California. We are trying to work out an agreement as to the length of the repayment plan and the amount of reserves that will need to be escrowed.”

11. Victims KD and ED received via fax a letter from LANDWER, dated March 16, 2006, on The Accurate Financial Group letterhead, signed by Charles H. Landwer, Jr. In the letter, LANDWER claimed that “[a]fter numerous calls and faxes between Chase Bank and our office,” they had come to an agreement. Either before or soon after this letter, LANDWER told Victims KD and ED that as a condition of the settlement negotiation, Chase Home Finance required their residence be placed in a trust. On March 23, 2006, at LANDWER’s direction, Victims KD and ED placed their residence at 1902 Candleberry Lane into a land trust managed by the Wayne Hummer Trust Company (trust SBL-2209). Victims KD and ED did so based on LANDWER’s false representation that Chase Home Finance required their residence be placed in a trust while negotiating a settlement. LANDWER told Victims KD and ED that they would be the trustees, and that they would remain owners of and in control of the land trust.

12. At LANDWER’s direction, between March 2006 and September 2006, Victims KD and ED made monthly mortgage payments on 1902 Candleberry Lane to Chase Home Finance, pursuant to what LANDWER had told them was a negotiated settlement with their lender, Chase Home Finance.

13. On about May 18, 2006, according to documents from the Wayne Hummer Trust Company, a document granting, “all rights, powers, privileges and beneficial interest in” the trust was transferred to Accurate Financial Group and LANDWER, and allegedly signed by Victims KD and ED. At no time did LANDWER tell Victims KD and ED that LANDWER would become beneficiary of the trust, and at no time did they authorize LANDWER to become beneficiary or to otherwise have control over their property. According to Victims KD and ED, they never signed any documents relating to 1902 Candleberry Lane in May 2006, they have never been to Wayne Hummer Trust Company, they have never met LANDWER in person, and they have never heard of Individual C, the alleged witness to the assignment. Based upon the Kendall County Recorder of Deeds’ filestamp, this alleged assignment was recorded on May 19, 2006, at the Kendall County, Illinois Recorder’s office.

14. Trust documents show that, on or about May 18, 2006, assignment documents purportedly signed by Victims KD and ED, were provided to the Wayne Hummer Trust Company at the request of LANDWER, which provided LANDWER with a beneficiary empowerment with the power of direction over the trust for 1902 Candleberry Lane. The only asset in the trust (SBL-2209) is 1902 Candleberry Lane.

15. According to the owner of RNB Title, on or about November 7, 2006, LANDWER contacted mortgage broker GC Lending for purposes of refinancing the property at 1902 Candleberry Lane. On about November 10, 2006, for purposes of the refinance, 1902 Candleberry Lane was appraised at $405,000. GC Lending obtained financing through American Mortgage Network (“AmNet”). According to RNB Title documents, on or about November 17, 2006, AmNet approved the funding for the refinancing of 1902 Candleberry Lane

16. According to the owner of RNB Title and unbeknownst to Victims KD and ED, on about November 30, 2006, Wayne Hummer Trust Company transferred 1902 Candleberry Lane to LANDWER via quit claim deed.

17. According to RNB Title documents, on or about December 6, 2006, a closing took place at RNB Title, 17W662 Butterfield Road in Oak Brook Terrace, Illinois, for purposes of refinancing the property at 1902 Candleberry Lane. Victims KD and ED were still living at 1902 Candleberry Lane, but they were unaware that a refinance was occurring, and they did not attend the December 6, 2006 closing.

18. RNB Title records indicate that, on about December 6, 2006, at the conclusion of the closing for 1902 Candleberry Lane, AmNet wired $230,522 from a disbursement account in San Diego, California, into the RNB Title account at the Private Bank and Trust Company, and ultimately into the Accurate Financial account (#0250031736) at Hinsdale Bank, an account held in the name of Accurate Financial Group, which account was opened and controlled by LANDWER and for which LANDWER was the sole signator. In addition, according to the owner of RNB Title, an RNB check in the amount of $50,000 was made payable to LANDWER personally. According to the owner of RNB Title, LANDWER requested the separate $50,000 check so he could use it as a down payment in an upcoming property purchase.

19. A review of the $50,000 check reflects that the reverse is endorsed by LANDWER. Beneath LANDWER’s signature is an endorsement stamp for deposit into Ticor Title Insurance Company’s Bank of America account. Ticor Title Insurance Company was the title company at the December 7, 2006 closing to purchase LANDWER’s residence at 1225 Oak Hill Road, Unit A.

20. According to the Hinsdale Bank CEO, on about December 6 or 7, 2006, LANDWER entered Hinsdale Bank and attempted to withdraw $238,000 from the Accurate Financial account in $100 bills. On December 5, 2006, just prior to the December 6, 2006, $230,522 inbound wire from RNB’s bank account #2103252 at the Private Bank of Chicago, the balance in LANDWER’s Hinsdale Bank account was approximately $34,291. According to the Hinsdale Bank CEO, the teller advised LANDWER that the bank did not have sufficient $100 bills to cover such a large withdrawal and, rather, offered LANDWER a $238,000 cashier’s check. LANDWER declined the cashier’s check and insisted to the teller that he needed the funds in cash because he could get an $11,000 discount on an alleged, unspecified asset that he wanted to purchase. The teller informed LANDWER that the cash funds would have to be ordered from the Federal Reserve Bank and that it would take several days.

LANDWER requested the $238,000 cash be ordered, and asked Hinsdale Bank to notify him when the cash funds would be available.

21. On or about December 11, 2006, the owner of RNB Title requested that RNB’s bank, The Private Bank of Chicago, initiate a wire recall request from Hinsdale Bank, to retrieve their dispersed funds ($230,522). The owner of RNB Title made the wire recall request because she believed, due to a series of discussions with her underwriting company, Ticor Title, that the December 6, 2006 closing of 1902 Candleberry Lane was fraudulent. On December 11, 2006, Hinsdale Bank notified law enforcement that it was honoring a request to recall the wire from the Private Bank on behalf of RNB Title for the December 6, 2006, $230,522 wire transfer. Hinsdale Bank advised LANDWER that RNB Title recalled the December 6, 2006 wire into the Accurate Financial account, and the $238,000 cash funds he sought to withdraw from the Hinsdale Bank were no longer available.

22. In a February 20, 2007, letter mailed to Victims KD and ED via the U.S. Postal Service from the law firm of Krentz & Krentz, LANDWER's attorneys, based upon information provided to them by their client, claimed that Victims KD and ED owed Accurate Financial Group $12,812 for unpaid rents for living at 1902 Candleberry Lane, in Yorkville, Illinois. According to Victims KD and ED, they never signed any agreement with LANDWER regarding rent.

23. During a consensually-recorded telephone call on about February 28, 2007, LANDWER told Victims KD and ED that they still were the owners of record of their residence. During this same conversation LANDWER told Victims KD and ED that they still owed LANDWER $50,000.

24. KD and ED received via mail a letter from LANDWER, dated March 20, 2007, on The Accurate Financial Group letterhead, signed by Charles H. Landwer, Jr. In the letter, LANDWER referenced his conversation with Victims KD and ED “last week” and the “need to finalize our agreement regarding your property.” Again, according to Victims KD and ED, they never signed any such agreement with LANDWER. LANDWER stated in the letter,

"As I am sure you remember we advanced the funds to save your home from foreclosure. We also advanced some funds as you were unable to stay current with your existing mortgage. . . . Our agreement called for the return of our money and a small amount of interest, if this was not received we are authorized to sell the property to recover our money – a drastic step we do not want to take if at all n ecessary. . . The way I understand your situation is that you can refinance the home and pay my firm the monies owed, you can sell the home and pay my firm the monies owed, or you can move out and my firm will contract with someone to sell the home pay off the mortgage-mortgages and pay my firm."

25. On or about December 6, 2006, in the Northern District of Illinois, Eastern Division, CHARLES LANDWER, defendant herein, for the purpose of executing the above-described scheme to defraud and attempting to do so, knowingly caused to be transmitted in interstate commerce by wire communication from AmNet in San Diego, California, to the Private Bank and Trust Company in Chicago, Illinois, certain signs, signals and sounds, namely: approximately $230,522.38 from the fraudulent refinance of Victim KD and ED’s house in Yorkville, Illinois, in violation of Title 18, United States Code, Section 1343 and 2.


26. I believe that based on the above information there is probable cause to believe that CHARLES H. LANDWER, JR., committed wire fraud, in violation of Title 18, United States Code, Section 1343 and 2.

FURTHER AFFIANT SAYETH NOT.
____________________________________
VICK LOMBARDO, Special Agent
Federal Bureau of Investigation
SUBSCRIBED AND SWORN TO BEFORE ME
this _____day of September, 2008
________________________________________
MARTIN ASHMAN
United States Magistrate Judge

Labels: Barrington Shores, Charles H. Landwer Jr., FBI, Vick Lombardo

CN Barrington Hearing Talking Points

Good evening. I am Congressman Don Manzullo, and I represent the 16th Congressional District of Illinois. I’m here today because the proposed sale of the EJ&E line to the Canadian National (CN) Railway will have significant negative impacts on many of the people I represent in McHenry County.

While I’ve been concerned about this deal since day one, a Draft Environmental Impact Statement recently released by the Surface Transportation Board (STB) confirmed many of my worst fears about increased accident risks, increased air pollution, increased exposure to hazardous material, and increased traffic. The report also acknowledged that railroads traditionally only contribute 5 to 10 percent of the costs to mitigate these problems. That would leave taxpayers to pay the tab for a transaction that solely benefits a private company’s bottom line.

I say it’s not about what’s traditional – it’s about what’s fair.

I understand that this transaction could have some macro benefits but it accomplishes that goal primarily by exporting the train congestion problems in downtown Chicago to outlying suburban areas such as Barrington. Tens of thousands of motorists in McHenry County travel through Barrington on their way to work each day, crossing the EJ&E line at Route 14, Route 59, and Lake-Cook Road. Another 4,000 or so ride Metra rail to work each day, crossing the EJ&E line in Barrington. All of these people will be affected by additional freight trains.

At the very least, they are going to encounter inconvenient delays. At the worst, it could become a matter of life and death. Not only could emergency responder vehicles become trapped on all sides by a train, but school buses in the Barrington school district cross the EJ&E lines some 400 times a day. Additional freight trains could quadruple the safety risk of students who traverse the crossings each day.

I am deeply troubled that, despite overwhelming public interest in this transaction, Canadian National recently filed a request to expedite a final decision on this transaction. I stand in opposition to this blatant attempt by Canadian National to evade the environmental review process and deny communities like ours a voice, and I urge the STB to reject this request.

I’m also concerned that the purchase of the EJ&E line could doom a planned expansion of commuter rail that will help suburban residents get to work faster as road congestion continues to snarl suburban roads. The proposed STAR line would connect nearly 100 suburban communities and provide a direct connection to O’Hare International Airport. Without access to 36 miles of EJ&E tracks, I fear that Metra’s STAR line could be shelved indefinitely.

Last month, I cosponsored legislation (H.R. 6476) that could help reserve the necessary expanse of EJ&E track for the STAR line. That way, the line could be used for benefit of the public, not just for the profit of a private company.

I am also a strong supporter of legislation (H.R. 6707) that would require the STB to weigh the impacts on local communities more heavily when considering railroad transactions.

I am very much looking forward to hearing the community perspective this evening. The conversation on this doesn’t end today, however, and I encourage all of you to continue voicing your concerns

Thank you.

Labels: 16th Congressional District, Canadian National, Don Manzullo, EJ and E RR

STATE OF ILLINOIS ) FIRM ID: 55019
) SS
COUNTY OF COOK )

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT, LAW DIVISION

VICKIE LUND, as Special Representative and Special Administrator of the Estate of VIRGINIA COLE, Deceased, Plaintiff,

vs.

WRHC & RC, INC., an Illinois Corporation d/b/a WOODSTOCK RESIDENCE, MARTY M. HIMEBAUGH, LPN, and PENNY WHITLOCK, RN, Defendants, GURBAX S. SAINI, MD, ALISSA NATAUPSKY, ELIZABETH NEATHERY, LPN, LORI R. McCONNELL, LPN, ANN M. ACEVEDO, LPN, TRACY JARAMILLO, CNA, ROSE SY, LPN, DORI DIAZ, LPN, and MONARCH HOSPICE & PALLIATIVE CARE, INC., an Illinois Corporation,

Respondents in Discovery.

Court # _______

COMPLAINT AT LAW

The Plaintiff, VICKIE LUND, as Special Representative and Special Administrator of the Estate of VIRGINIA COLE, Deceased, by and through her attorneys, LEVIN & PERCONTI, complains against the Defendants, WRHC & RC, INC., an Illinois Corporation d/b/a WOODSTOCK RESIDENCE, MARTY M. HIMEBAUGH, LPN, and PENNY WHITLOCK, RN, and Respondents in Discovery, GURBAX S. SAINI, MD, ALISSA NATAUPSKY, ELIZABETH NEATHERY, LPN, LORI R. McCONNELL, LPN, ANN M. ACEVEDO, LPN, TRACY JARAMILLO, CNA, ROSE SY, LPN, DORI DIAZ, LPN, and MONARCH HOSPICE & PALLIATIVE CARE, INC., an Illinois Corporation, as follows:

COUNT I

Vickie Lund vs. Woodstock Residence

(Statutory Action - Nursing Home Care Act - Survival)

The Plaintiff, VICKIE LUND, as Special Representative and Special Administrator of the Estate of VIRGINIA COLE, Deceased, by and through her attorneys, LEVIN & PERCONTI, complains against the Defendant, WRHC & RC, INC., an Illinois Corporation d/b/a WOODSTOCK RESIDENCE, as follows:1. VIRGINIA COLE (“VIRGINIA”) was born on July 23, 1928.
3. VIRGINIA died on September 10, 2006.
4. VIRGINIA was a resident of the long term care facility commonly known as WOODSTOCK RESIDENCE from approximately July 17, 2006 until September 10, 2006.
5. At all times relevant to this Complaint, the Defendant, WRHC & RC, INC., an Illinois Corporation (“WRHC & RC”), owned, operated, and/or managed WOODSTOCK RESIDENCE, located at 309 McHenry Avenue, Woodstock, Illinois.
6. At all times relevant to this Complaint, the Defendant, WRHC & RC, was the licensee of the nursing home where VIRGINIA resided, located at 309 McHenry Avenue, Woodstock, Illinois.
7. At all times relevant to this Complaint, the Defendant, WRHC & RC, had its principal place of business located in the City of Morton Grove, State of Illinois and County of Cook.
8. At all times relevant to this Complaint, the Defendant, WRHC & RC, had its registered agent located in the City of Chicago, State of Illinois and County of Cook.
9. At all times relevant to this Complaint, there was in full force and effect, a statute known as the Nursing Home Care Act, as amended (the "Act"), 210 ILCS 45/1-101 et seq.
10. At all times relevant to the Complaint, WOODSTOCK RESIDENCE, operated and owned by WRHC & RC was a "facility" as defined by 45/1-113 of the Act and was subject to the requirements of the Act and the regulations of the Illinois Department of Public Health promulgated pursuant to the Act.
11. At all times relevant to this Complaint, WOODSTOCK RESIDENCE was defined as a “nursing facility” and subject to the requirements of 42 U.S.C. §1396(r) (1990) et seq., as amended by the Omnibus Budget Reconciliation Act of 1987 ("OBRA") and Volume 42, Code of Federal Regulations, Part 483 setting forth Medicare and Medicaid Requirements for Long Term Facilities (“OBRA Regulations”).
12. At least as early as April 3, 2006, the Administration including, but not limited to, ALISSA NATAUPSKY and PENNY WHITLOCK, RN, for the Defendant, WRHC & RC, was aware that that Morphine Sulfate was being administered to residents without an order and/or outside prescribed parameters.
13. From at least as early as April 2006 until the end of September 2006, the Defendant WRHC & RC, by and through its employees, servants and/or agents, stored bottles of Morphine Sulfate for expired residents instead of discarding the medication, in violation of its own policies and procedures and the applicable standard of care.
14. On or about September 10, 2006, the Defendant WRHC & RC, by and through its employees, servants and/or agents, facilitated and/or were aware of the improper disposal of Morphine Sulfate.
15. On and prior to September 6, 2006 through September 10, 2006, during the residency of VIRGINIA, the facility permitted the improper and unlawful administration of medications including, but not limited to, Morphine Sulfate, to VIRGINIA.
16. At all times relevant to this Complaint, Defendants MARTY M. HIMEBAUGH, LPN and PENNY WHITLOCK, RN, were employees, agents and/or servants of WRHC & RC, and were acting within the scope of their employment with WRHC & RC and as such Defendant WRHC & RC is vicariously liable for the negligent acts of Defendants, MARTY M. HIMEBAUGH, LPN, and PENNY WHITLOCK, RN, as alleged herein.
17. On April 3, 2008 Defendant MARTY M. HIMEBAUGH, LPN was indicted by the McHenry Count Grand Jury for four counts of Criminal Neglect of a Long Term Care Resident, one count of Acquiring or Obtaining Possession of a Controlled Substance by Misrepresentation, Fraud, Deception, or Subterfuge, and one count of Unlawful Delivery of a Controlled Substance; the indictments include a specific charge that MARTY M. HIMEBAUGH, LPN recklessly administered a dosage of morphine to VIRGINIA when she was unresponsive and exhibiting delayed breathing patterns.
18. On April 3, 2008 Defendant PENNY WHITLOCK, RN was indicted by the McHenry Count Grand Jury for four counts of Criminal Neglect of a Long Term Care Resident and two counts of Obstructing Justice; the indictments include a specific charge that PENNY WHITLOCK, RN endangered the life of VIRGINIA by failing to report alleged neglect or abuse.
19. Defendant through its owners, officers, employees and agents were under a statutory obligation not to violate the rights of any resident of WOODSTOCK RESIDENCE including the obligation not to abuse or neglect any resident as provided by the Act as follows:

An owner, licensee, administrator, employee or agent of a facility shall not abuse or neglect a resident. 210 ILCS 45/2-107

******************************
"Abuse" means any physical or mental injury or sexual assault inflicted on a resident other than by accidental means in a facility. 210 ILCS 45/1-103.

"Neglect" means a failure in a facility to provide adequate medical or personal care or maintenance, which failure results in physical or mental injury to a resident or in the deterioration of a resident's physical or mental condition. 210 ILCS 45/1-117.

20. On and prior to September 6, 2006 through September 10, 2006, during the period of VIRGINIA’S residency at WOODSTOCK RESIDENCE, Defendant by and through its employees, agents and/or servants including, but not limited to, MARTY M. HIMEBAUGH, LPN and PENNY WHITLOCK, RN, failed to provide ordinary care and violated the provisions of the Act in that the Defendant:

a)In violation of §483.13(b) and 483.13(c)(1)(i) of the OBRA Regulations and 77 Ill. Admin. Code, Ch. I §300.3240, failed to protect VIRGINIA from injury and abuse due to the misuse of the controlled medication liquid, Morphine Sulfate;

b)In violation of §483.25 of the OBRA Regulations, failed to maintain the highest practicable physical and mental well being of VIRGINIA through appropriate management of her medication;

c)In violation of 77 Ill. Admin. Code, Ch. I §300.1210(a), failed to provide adequate and properly supervised care to meet VIRGINIA’S total nursing and personal care needs;

d)In violation of §483.13(a) of the OBRA Regulations, failed to assure VIRGINIA was not given lethal medications without a medical reason and for the purpose of staff convenience;

e)In violation of §483.13(c)(2)-(4) of the OBRA Regulations, failed to ensure that all alleged violations involving mistreatment, neglect, or abuse, were investigated and reported to the administrator of the facility and other officials in accordance with State law;

f)In violation of 77 Ill. Admin. Code, Ch. I §300.690, failed to notify the Department of any incident or accident which has, or is likely to have, a significant effect on the health, safety, or welfare of a resident, including VIRGINIA;

g)In violation of 77 Ill. Admin. Code, Ch. I §300.3210(n), (o) and (p), failed to notify VIRGINIA’S family, representative and physician of changes in her condition;

h)In violation of §483.25(l)(1)(i)-(vi) of the OBRA Regulations, failed to prevent VIRGINIA from receiving unnecessary lethal drugs through a proper drug/medication management program;

i)In violation of §483.25(m)(2) of the OBRA Regulations failed to keep VIRGINIA free of any medication errors;

j)In violation of 77 Ill. Admin. Code, Ch. I §300.1630(3)(e), failed to report medication errors immediately to VIRGINIA’S physician, and failed to record the incident in VIRGINIA’S medical records;

k)In violation of §483.75(l)(1) of the OBRA Regulations, failed to accurately maintain clinical records for VIRGINIA according to professional standards and practice;

l)In violation of §483.60(b) of the OBRA Regulations, failed to properly enforce the disposition of a controlled medication, properly monitor controlled substances through an acceptable medical system, account for all controlled medication, and provide consistent and accurate narcotic counts to identify missing medications;

m)In violation of §483.60 (d)-(e) of the OBRA Regulations, failed to ensure the safe and secure storage, accurate labeling, and safe administration of drugs;

n)In violation of §483.75(b) of the OBRA Regulations, failed to notify local law enforcement of possible criminal activity involving the potential misuse of Morphine Sulfate by a staff nurse;

o)Failed to initiate and conduct a complete and thorough investigation after allegations were made that a staff nurse was overmedicating residents;

p)Failed to protect residents from possible injury/abuse once it was alleged that a staff nurse was misusing medications;

q)Failed to properly assess the need for, and monitor residents receiving Morphine Sulfate on an as needed basis;

r)Failed to ensure that there was an accurate count of all controlled medications to identify loss or diversion;

s)Failed to notify local law enforcement and state officials of possible criminal activity involving the potential misuse of narcotic medications by a staff nurse;

t)Failed to prevent the use of a Schedule II medication, Morphine Sulfate, in excessive unmonitored doses to VIRGINIA;

u)Failed to stop the use of a Schedule II medication to VIRGINIA after a noticeable change in her condition;

v)Failed to provide adequate monitoring for the use of Morphine Sulfate according to the current standard of practice and manufacturer’s guidelines;

w)Failed to ensure that the contracted pharmacy accurately reviewed the drug regimen of residents using Morphine Sulfate and promptly identify irregularities;

x)Failed to ensure VIRGINIA was free from the use of chemical restraints without a physician order;

y)Failed to ensure that medications administered to VIRGINIA had been ordered by a physician;

z)Failed to take reasonable steps to see that appropriate medical attention was given to VIRGINIA when it was known, or should have been known that such care was urgently needed;

aa)Failed to properly train individuals who provided care to VIRGINIA including, but not limited to, the administration of medication; and

bb)Otherwise failed to provide adequate medical care, personal care, maintenance, and treatment to VIRGINIA.

21. The Nursing Home Care Act, as amended provides as follows:

The licensee shall pay the actual damages, and costs and attorney’s fees to a facility resident whose rights, as specified in part 1 of Article 2 of this Act, are violated. 210 ILCS 45/3-602

22. The Nursing Home Care Act, as amended, provides as follows:

The owner and licensee are liable to a resident for any intentional or negligent act or omission of their agents or employees which injures the residents. 210 ILCS 45/3-601

23. As a direct and proximate result of one or more of the Defendant’s statutory violations of the Nursing Home Care Act and negligent acts or omissions, VIRGINIA was administered improper and unlawful doses of medications including, but not limited to, Morphine Sulfate, which resulted in physical and mental injury to VIRGINIA, a deterioration of her physical and/or mental condition, and caused or contributed to cause her death.
24. The Plaintiff, VICKIE LUND, as Special Representative and Special Administrator of the Estate of VIRGINIA COLE, Deceased, brings this action pursuant to the provisions of 755 ILCS 5/27-6, commonly known as the Survival Act of the State of Illinois.
25. As a direct and proximate result of one or more of the Defendant’s statutory violations and negligent acts or omissions, VIRGINIA suffered injuries of a personal and pecuniary nature, past, present, and future, including, but not limited to, pain and suffering, disability and disfigurement, medical, funeral, and other related expenses; and VIRGINIA would have been entitled to receive compensation from the Defendant for these injuries, had she survived.
WHEREFORE, the Plaintiff, VICKIE LUND, as Special Representative and Special Administrator of the Estate of VIRGINIA COLE, Deceased, asks that a judgment be entered against the Defendant, WRHC & RC, INC., an Illinois Corporation d/b/a WOODSTOCK RESIDENCE, in a fair and just amount in excess of FIFTY THOUSAND DOLLARS ($50,000.00), and for attorneys fees and costs as provided for by Statute.

COUNT II

Vickie Lund vs. Woodstock Residence

(Statutory Action - Nursing Home Care Act – Wrongful Death)

The Plaintiff, VICKIE LUND, as Special Representative and Special Administrator of the Estate of VIRGINIA COLE, Deceased, by and through her attorneys, LEVIN & PERCONTI, complains against the Defendant, WRHC & RC, INC., an Illinois Corporation d/b/a WOODSTOCK RESIDENCE, as follows:

1-22. Plaintiff realleges paragraphs 1-22 of Count I of this Complaint as and for paragraphs 1-22 of this Count II.
23. As a direct and proximate result of one or more of the Defendant’s statutory violations of the Nursing Home Care Act and negligent acts or omissions, VIRGINIA was administered improper and unlawful doses of medications including, but not limited to, Morphine Sulfate, which resulted in physical and mental injury, a deterioration of her physical and/or mental condition, and caused or contributed to cause her death.
24. The Plaintiff, VICKIE LUND, as Special Representative and Special Administrator of the Estate of VIRGINIA COLE, Deceased, brings this action pursuant to the provisions of 740 ILCS 180/1 et seq., commonly known as the Wrongful Death Act of the State of Illinois.
25. VIRGINIA left surviving her various persons who were her next of kin including, but not limited to, the following individuals.

a. Vickie Lund – daughter
b. Kevin Cole – son

26. VIRGINIA’S next of kin suffered injuries as a result of her death, including the loss of companionship and society. Further, VIRGINIA’S estate was diminished by virtue of the medical, hospital and funeral expenses that were incurred.
27. Attached to this Complaint is an Attorney Affidavit and Health Professional Report filed pursuant to 735 ILCS 5/2-622. (Exhibit “A”)
WHEREFORE, the Plaintiff, VICKIE LUND, as Special Representative and Special Administrator of the Estate of VIRGINIA COLE, Deceased, asks that a judgment be entered against the Defendant, WRHC & RC, INC., an Illinois Corporation d/b/a WOODSTOCK RESIDENCE, in a fair and just amount in excess of FIFTY THOUSAND DOLLARS ($50,000.00), and for attorneys fees and costs as provided for by Statute.

COUNT III

Vickie Lund vs. Woodstock Residence

(Negligence - Survival)

The Plaintiff, VICKIE LUND, as Special Representative and Special Administrator of the Estate of VIRGINIA COLE, Deceased, by and through her attorneys, LEVIN & PERCONTI, complains against the Defendant, WRHC & RC, INC., an Illinois Corporation d/b/a WOODSTOCK RESIDENCE, as follows:

1-18. Plaintiff realleges paragraphs 1-18 of Count I of this Complaint as and for paragraphs 1-18 of this Count III.
19. In providing nursing home services to the Decedent, WRHC & RC, INC., an Illinois Corporation, by and through its employees, agents and/or servants including, but not limited to, MARTY M. HIMEBAUGH, LPN and PENNY WHITLOCK, RN, had a duty to exercise the care required of a nursing home in the same or similar circumstances.
20. On and prior to September 6, 2006 through September 10, 2006, during the period of VIRGINIA’S residency at WOODSTOCK RESIDENCE, Defendant by and through its employees, agents and/or servants including but not limited to, MARTY M. HIMEBAUGH, LPN and PENNY WHITLOCK, RN, failed to provide ordinary care and was negligent by one of more of the following acts and/or omissions:

a)Failed to initiate and conduct a complete and thorough investigation after allegations were made that a staff nurse was overmedicating residents;

b)Failed to protect residents from possible injury/abuse once it was alleged that a staff nurse was misusing medications;

c)Failed to properly assess the need for, and monitor residents receiving Morphine Sulfate on an as needed basis;

d)Failed to ensure that there was an accurate count of all controlled medications to identify loss or diversion;

e)Failed to notify local law enforcement and state officials of possible criminal activity involving the potential misuse of narcotic medications by a staff nurse;

f)Failed to prevent the use of a Schedule II medication, Morphine Sulfate, in excessive unmonitored doses to VIRGINIA;

g)Failed to stop the use of a Schedule II medication to VIRGINIA after a noticeable change in her condition;

h)Failed to provide adequate monitoring for the use of Morphine Sulfate according to the current standard of practice and manufacturer’s guidelines;

i)Failed to ensure that the contracted pharmacy accurately reviewed the drug regimen of residents using Morphine Sulfate and promptly identify irregularities;

j)Failed to ensure VIRGINIA was free from the use of chemical restraints without a physician order;

k)Failed to ensure that medications administered to VIRGINIA had been ordered by a physician;

l)Failed to take reasonable steps to see that appropriate medical attention was given to VIRGINIA when it was known, or should have been known that such care was urgently needed;

m)Failed to properly train individuals who provided care to VIRGINIA including, but not limited to, the administration of medication; and

n)Otherwise failed to provide adequate medical care, personal care, maintenance, and treatment to VIRGINIA.

21. As a direct and proximate result of one or more of the Defendant’s negligent acts or omissions, VIRGINIA was administered improper and unlawful doses of medications including, but not limited to, Morphine Sulfate, which resulted in physical and mental injury, a deterioration of her physical and/or mental condition, and caused or contributed to cause her death.
22. The Plaintiff, VICKIE LUND, as Special Representative and Special Administrator of the Estate of VIRGINIA COLE, Deceased, brings this action pursuant to the provisions of 755 ILCS 5/27-6, commonly known as the Survival Act of the State of Illinois.
23. As a direct and proximate result of one or more of the Defendant’s negligent acts or omissions, VIRGINIA suffered injuries of a personal and pecuniary nature, past, present, and future, including, but not limited to, pain and suffering, disability and disfigurement, medical, funeral, and other related expenses; and VIRGINIA would have been entitled to receive compensation from the Defendant for these injuries, had she survived.
24. Attached to this Complaint is an Attorney Affidavit and Health Professional Report filed pursuant to 735 ILCS 5/2-622. (Exhibit “A”)
WHEREFORE, the Plaintiff, VICKIE LUND, as Special Representative and Special Administrator of the Estate of VIRGINIA COLE, Deceased, asks that a judgment be entered against the Defendant, WRHC & RC, INC., an Illinois Corporation d/b/a WOODSTOCK RESIDENCE, in a fair and just amount in excess of FIFTY THOUSAND DOLLARS ($50,000.00).

COUNT IV

Vickie Lund vs. Woodstock Residence

(Negligence –Wrongful Death)

The Plaintiff, VICKIE LUND, as Special Representative and Special Administrator of the Estate of VIRGINIA COLE, Deceased, by and through her attorneys, LEVIN & PERCONTI, complains against the Defendant, WRHC & RC, INC., an Illinois Corporation d/b/a WOODSTOCK RESIDENCE, as follows:

1-20. Plaintiff realleges paragraphs 1-20 of Count III of this Complaint as and for paragraphs 1-20 of this Count IV.
21. As a direct and proximate result of one or more of the Defendant’s negligent acts or omissions, VIRGINIA was administered improper and unlawful doses of medications including, but not limited to, Morphine Sulfate, which resulted in physical and mental injury, a deterioration of her physical and/or mental condition, and caused or contributed to cause her death.
22. The Plaintiff, VICKIE LUND, as Special Representative and Special Administrator of the Estate of VIRGINIA COLE, Deceased, brings this action pursuant to the provisions of 740 ILCS 180/1 et seq., commonly known as the Wrongful Death Act of the State of Illinois.
23. VIRGINIA left surviving his various persons who were his next of kin including, but not limited to, the following individuals.
a. Vickie Lund – daughter
b. Kevin Cole – son
24. VIRGINIA’S next of kin suffered injuries as a result of her death, including the loss of companionship and society. Further, VIRGINIA’S estate was diminished by virtue of the medical, hospital and funeral expenses that were incurred.
25. Attached to this Complaint is an Attorney Affidavit and Health Professional Report filed pursuant to 735 ILCS 5/2-622. (Exhibit “A”)
WHEREFORE, the Plaintiff, VICKIE LUND, as Special Representative and Special Administrator of the Estate of VIRGINIA COLE, Deceased, asks that a judgment be entered against the Defendant, WRHC & RC, INC., an Illinois Corporation d/b/a WOODSTOCK RESIDENCE, in a fair and just amount in excess of FIFTY THOUSAND DOLLARS ($50,000.00).

COUNT V

Vickie Lund vs. Marty M. Himebaugh, LPN

(Negligence – Survival)

The Plaintiff, VICKIE LUND, as Special Representative and Special Administrator of the Estate of VIRGINIA COLE, Deceased, by and through her attorneys, LEVIN & PERCONTI, complains against the Defendant, MARTY HIMEBAUGH, LPN, as follows:
1. VIRGINIA COLE (“VIRGINIA”) was born on July 23, 1928.
2. VIRGINIA died on September 10, 2006.
3. VIRGINIA was a resident of the long term care facility commonly known as WOODSTOCK RESIDENCE from approximately July 17, 2006 until September 10, 2006.
4. At all times relevant to this Complaint, the Defendant, MARTY HIMEBAUGH, LPN, was a Licensed Practical Nurse, licensed in the State of Illinois operating under License Number 43038111.
5. While a resident of WOODSTOCK RESIDENCE, VIRGINIA was cared for by the Defendant, MARTY HIMEBAUGH, LPN.
6. In providing nursing services to VIRGNIA, the Defendant, MARTY HIMEBAUGH, LPN, had a duty to exercise the care ordinarily provided by a nurse in the same or similar circumstances.
7. On and prior to September 6, 2006 through September 10, 2006, during the period of VIRGINIA’S residency at WOODSTOCK RESIDENCE, the Defendant, MARTY HIMEBAUGH, LPN, breached her duty and was guilty of one or more of the following negligent acts or omissions:

a)Improperly administered Morphine Sulfate to VIRGINIA;

b)Improperly administered Morphine Sulfate to VIRGINIA while she was unresponsive;

c)Improperly administered Morphine Sulfate to VIRGINIA while she exhibited delayed breathing patterns;

d)Improperly administered Morphine Sulfate to VIRGINIA outside of prescribed parameters;

e)Failed to accurately document the administration of Morphine Sulfate that was administered to VIRGINIA;

f)Failed to assess VIRGINIA’S pain level prior to the administration of Morphine Sulfate;

g)Failed to assess VIRGINIA after providing pain medication for side effects and/or adverse reactions;

h)Failed to stop the use of Morphine Sulfate for VIRGINIA after a noticeable change in condition;

i)Failed to notify VIRGINIA’S physician of a significant change in her condition prior to administering Morphine Sulfate;

j)Failed to notify VIRGINIA’S physician of a significant change in her condition after administering Morphine Sulfate; and

k)Otherwise failed to protect VIRGINIA from abuse and neglect.

8. As a direct and proximate result of one or more of the Defendant’s negligent acts or omissions, VIRGINIA was administered improper and unlawful doses of medications including, but not limited to, Morphine Sulfate, which resulted in physical and mental injury, a deterioration of her physical and/or mental condition, and caused or contributed to cause her death.
9. The Plaintiff, VICKIE LUND, as Special Representative and Special Administrator of the Estate of VIRGINIA COLE, Deceased, brings this action pursuant to the provisions of 755 ILCS 5/27-6, commonly known as the Survival Act of the State of Illinois.
10. As a direct and proximate result of one or more of the Defendant’s negligent acts or omissions, VIRGINIA suffered injuries of a personal and pecuniary nature, past, present, and future, including, but not limited to, pain and suffering, disability and disfigurement, medical, funeral, and other related expenses; and VIRGINIA would have been entitled to receive compensation from the Defendant for these injuries, had she survived.
11. Attached to this Complaint is an Attorney Affidavit and Health Professional Report filed pursuant to 735 ILCS 5/2-622. (Exhibit “B”)
WHEREFORE, the Plaintiff, VICKIE LUND, as Special Representative and Special Administrator of the Estate of VIRGINIA COLE, Deceased, asks that a judgment be entered against the Defendant, MARTY HIMEBAUGH, RN, in a fair and just amount in excess of FIFTY THOUSAND DOLLARS ($50,000.00).

COUNT VI

Vickie Lund vs. Marty M. Himebaugh, LPN

(Negligence – Wrongful Death)

The Plaintiff, VICKIE LUND, as Special Representative and Special Administrator of the Estate of VIRGINIA COLE, Deceased, by and through her attorneys, LEVIN & PERCONTI, complains against the Defendant, MARTY HIMEBAUGH, LPN, as follows:
1-7. Plaintiff realleges paragraphs 1-7 of Count V of this Complaint as and for paragraphs 1-7 of this Count VI.
8. As a direct and proximate result of one or more of the Defendant’s negligent acts or omissions, VIRGINIA was administered improper and unlawful doses of medications including, but not limited to, Morphine Sulfate, which resulted in physical and mental injury, a deterioration of her physical and/or mental condition, and caused or contributed to cause her death.
9. The Plaintiff, VICKIE LUND, as Special Representative and Special Administrator of the Estate of VIRGINIA COLE, Deceased, brings this action pursuant to the provisions of 740 ILCS 180/1 et seq., commonly known as the Wrongful Death Act of the State of Illinois.
10. VIRGINIA left surviving his various persons who were his next of kin including, but not limited to, the following individuals.
a. Vickie Lund – daughter
b. Kevin Cole – son
11. VIRGINIA’S next of kin suffered injuries as a result of her death, including the loss of companionship and society. Further, VIRGINIA’S estate was diminished by virtue of the medical, hospital and funeral expenses that were incurred.
12. Attached to this Complaint is an Attorney Affidavit and Health Professional Report filed pursuant to 735 ILCS 5/2-622. (Exhibit “B”)
WHEREFORE, the Plaintiff, VICKIE LUND, as Special Representative and Special Administrator of the Estate of VIRGINIA COLE, Deceased, asks that a judgment be entered against the Defendant, MARTY HIMEBAUGH, LPN, in a fair and just amount in excess of FIFTY THOUSAND DOLLARS ($50,000.00).

COUNT VII

Vickie Lund vs. Penny Whitlock, RN

(Negligence – Survival)

The Plaintiff, VICKIE LUND, as Special Representative and Special Administrator of the Estate of VIRGINIA COLE, Deceased, by and through her attorneys, LEVIN & PERCONTI, complains against the Defendant, PENNY WHITLOCK, RN, as follows:
1. VIRGINIA COLE (“VIRGINIA”) was born on July 23, 1928.
2. VIRGINIA died on September 10, 2006.
3. VIRGINIA was a resident of the long term care facility commonly known as WOODSTOCK RESIDENCE from approximately July 17, 2006 until September 10, 2006.
4. At all times relevant to this Complaint, the Defendant, PENNY WHITLOCK, RN was the Director of Nursing at WOODSTOCK RESIDENCE.
5. At all times relevant to this Complaint, the Defendant, PENNY WHITLOCK, RN, was a Registered Nurse, licensed in the State of Illinois operating under License Number 041287834.
6. At all times relevant to this Complaint, the Defendant, PENNY WHITLOCK, RN, exercised significant control over the day to day operations of the nursing home including, but not limited to, budgetary decisions, hiring and firing, staffing the facility, training the staff, monitoring the quality of care given by the nursing staff to residents of the facility, and ensuring that medication was properly being administered to residents.
7. Beginning at least as early as April 3, 2006, the Defendant, PENNY WHITLOCK, RN, was aware that Morphine Sulfate was being administered to residents of WOODSTOCK RESIDENCE without an order and/or outside prescribed parameters.
8. In providing the services as the Director of Nursing of WOODSTOCK RESIDENCE, PENNY WHITLOCK, RN, had a duty to exercise the care ordinarily provided by a Director of Nursing and Registered Nurse in the same or similar circumstances.
9. On and prior to September 6, 2006 through September 10, 2006, during the period of VIRGINIA’S residency at WOODSTOCK RESIDENCE, the Defendant, PENNY WHITLOCK, RN, breached her duty and was guilty of one or more of the following negligent acts or omissions:

a)Carelessly encouraged a staff nurse to continue actions which constituted abuse or neglect;

b)Carelessly directed an employee of Woodstock Residence to destroy a controlled substance contrary to proper protocol;

c)Carelessly allowed the facility to operate in a way that medications were administered to residents without or outside the parameters of a physician’s order;

d)Failed to initiate and conduct a complete and thorough investigation after allegations were made that a staff nurse was overmedicating residents;

e)Failed to protect residents from possible injury/abuse once it was alleged that a staff nurse was misusing medications;

f)Failed to ensure that there was an accurate count of all controlled medications to identify loss or diversion;

g)Failed to notify local law enforcement and state officials of possible criminal activity involving the potential misuse of narcotic medications by a staff nurse;

h)Failed to prevent the use of a Schedule II medication, Morphine Sulfate, in excessive unmonitored doses to VIRGINIA;

i)Failed to stop the use of a Schedule II medication to VIRGINIA after a noticeable change in her condition;

j)Failed to provide adequate monitoring for the use of Morphine Sulfate according to the current standard of practice and manufacturer’s guidelines;

k)Failed to ensure that the contracted pharmacy accurately reviewed the drug regimen of residents using Morphine Sulfate and promptly identify irregularities;

l)Failed to ensure VIRGINIA was free from the use of chemical restraints without a physician order;

m)Failed to ensure that medications administered to VIRGINIA had been ordered by a physician;

n)Failed to take reasonable steps to see that appropriate medical attention was given to VIRGINIA when it was known, or should have been known that such care was urgently needed;

o)Failed to properly train individuals who provided care to VIRGINIA including, but not limited to, the administration of medication; and

p)Otherwise failed to provide adequate medical care, personal care, maintenance, and treatment to VIRGINIA.

10. As a direct and proximate result of one or more of the Defendant’s negligent acts or omissions, VIRGINIA was administered improper and unlawful doses of medications including, but not limited to, Morphine Sulfate, which resulted in physical and mental injury, a deterioration of her physical and/or mental condition, and caused or contributed to cause her death.
11. The Plaintiff, VICKIE LUND, as Special Representative and Special Administrator of the Estate of VIRGINIA COLE, Deceased, brings this action pursuant to the provisions of 755 ILCS 5/27-6, commonly known as the Survival Act of the State of Illinois.
12. As a direct and proximate result of one or more of the Defendant’s negligent acts or omissions, VIRGINIA suffered injuries of a personal and pecuniary nature, past, present, and future, including, but not limited to, pain and suffering, disability and disfigurement, medical, funeral, and other related expenses; and VIRGINIA would have been entitled to receive compensation from the Defendant for these injuries, had she survived.
13. Attached to this Complaint is an Attorney Affidavit and Health Professional Report filed pursuant to 735 ILCS 5/2-622. (Exhibit “B”)
WHEREFORE, the Plaintiff, VICKIE LUND, as Special Representative and Special Administrator of the Estate of VIRGINIA COLE, Deceased, asks that a judgment be entered against the Defendant, PENNY WHITLOCK, RN, in a fair and just amount in excess of FIFTY THOUSAND DOLLARS ($50,000.00).

COUNT VIII

Vickie Lund vs. Penny Whitlock, RN

(Negligence – Wrongful Death)

The Plaintiff, VICKIE LUND, as Special Representative and Special Administrator of the Estate of VIRGINIA COLE, Deceased, by and through her attorneys, LEVIN & PERCONTI, complains against the Defendant, PENNY WHITLOCK, RN, as follows:

1-9. Plaintiff realleges paragraphs 1-9 of Count VII of this Complaint as and for paragraphs 1-9 of this Count VIII.
10. As a direct and proximate result of one or more of the Defendant’s negligent acts or omissions, VIRGINIA was administered improper and unlawful doses of medications including, but not limited to, Morphine Sulfate, which resulted in physical and mental injury, a deterioration of her physical and/or mental condition, and caused or contributed to cause her death.
11. The Plaintiff, VICKIE LUND, as Special Representative and Special Administrator of the Estate of VIRGINIA COLE, Deceased, brings this action pursuant to the provisions of 740 ILCS 180/1 et seq., commonly known as the Wrongful Death Act of the State of Illinois.
12. VIRGINIA left surviving his various persons who were his next of kin including, but not limited to, the following individuals.

a. Vickie Lund – daughter
b. Kevin Cole – son

13. VIRGINIA’S next of kin suffered injuries as a result of her death, including the loss of companionship and society. Further, VIRGINIA’S estate was diminished by virtue of the medical, hospital and funeral expenses that were incurred.
14. Attached to this Complaint is an Attorney Affidavit and Health Professional Report filed pursuant to 735 ILCS 5/2-622. (Exhibit “B”)
WHEREFORE, the Plaintiff, VICKIE LUND, as Special Representative and Special Administrator of the Estate of VIRGINIA COLE, Deceased, asks that a judgment be entered against the Defendant, PENNY WHITLOCK, RN, in a fair and just amount in excess of FIFTY THOUSAND DOLLARS ($50,000.00).

COUNT IX

Vickie Lund vs. Woodstock Residence, Marty M. Himebaugh, LPN
and Penny Whitlock, RN

(Battery - Survival)

The Plaintiff, VICKIE LUND, as Special Representative and Special Administrator of the Estate of VIRGINIA COLE, Deceased, by and through her attorneys, LEVIN & PERCONTI, complains against the Defendants, WRHC & RC, INC., an Illinois Corporation d/b/a WOODSTOCK RESIDENCE, MARTY M. HIMEBAUGH, LPN and PENNY WHITLOCK, RN, as follows:

1. VIRGINIA COLE (“VIRGINIA”) was born on July 23, 1928.
2. VIRGINIA died on September 10, 2006.
3. VIRGINIA was a resident of the long term care facility commonly known as WOODSTOCK RESIDENCE from approximately July 17, 2006 until September 10, 2006.
4. During VIRGINIA’s residency at WOODSTOCK RESIDENCE, Defendant, MARTY M. HIMEBAUGH, LPN, was a duly authorized employee, servant and/or agent of Defendant, WRHC & RC, INC., an Illinois Corporation d/b/a WOODSTOCK RESIDENCE.
5. At all times relevant to this Complaint, the Defendant, MARTY M. HIMEBAUGH, LPN was a nurse that provided care and treatment to VIRGINIA.
6. During VIRGINIA’s residency at WOODSTOCK RESIDENCE, Defendant, PENNY WHITLOCK, RN, was a duly authorized employee, servant and/or agent of Defendant, WRHC & RC, INC., an Illinois Corporation d/b/a WOODSTOCK RESIDENCE.
7. At all times relevant to this Complaint, the Defendant, PENNY WHITLOCK, RN was the Director Nursing at WOODSTOCK RESIDENCE and as such was required to oversee the care and treatment of all nurses working at WOODSTOCK RESIDENCE.
8. WRHC & RC, INC., an Illinois Corporation d/b/a WOODSTOCK RESIDENCE authorized, sanctioned, ratified, acquiesced and approved the conduct of MARTY M. HIMEBAUGH, LPN and PENNY WHITLOCK, RN and as such is liable for the intentional acts of MARTY M. HIMEBAUGH, LPN and PENNY WHITLOCK, RN.
9. WRHC & RC, INC., an Illinois Corporation d/b/a WOODSTOCK RESIDENCE is liable to a resident for any intentional or negligent act or omission of their agents or employees which injures the residents. 210 ILCS 45/3-601
10. Prior to September 6, 2006, VIRGINIA did not have a physician order for a medication commonly known as Morphine Sulfate.
11. Prior to September 6, 2006 the Defendant, MARTY M. HIMEBAUGH, LPN, administered Morphine Sulfate to VIRGINIA without an order from a licensed physician or a prescription as required by the Illinois Nursing and Advanced Practice Nursing Act 225 Ill.Comp.Stat.
12. On and subsequent to September 9, 2006, VIRGINIA was readmitted to WOODSTOCK under hospice and had a physician order for 20 mg/ml of Roxanol to be administered every two (2) hours as needed.
13. On and subsequent to September 9, 2006, Defendant, MARTY M. HIMEBAUGH, LPN, administered more Morphine Sulfate to VIRGINIA than was ordered by her physician.
14. On and subsequent to September 9, 2006, Defendant, MARTY M. HIMEBAUGH, LPN, continued to administer Morphine Sulfate to VIRGINIA when she was unresponsive and exhibited a delayed breathing pattern.
15. At all times relevant to this Complaint, the Defendant, PENNY WHITLOCK, RN, encouraged MARTY M. HIMEBAUGH, LPN to administer improper and unlawful amounts of Morphine Sulfate to VIRGINIA.
16. Under Illinois law a registered nurse may not not administer medications without a physician’s order or in violation of a physician’s order.
17. Under Illinois law a person commits battery if he or she intentionally or knowingly, without legal justification, and by any means causes bodily harm to an individual.
18. The Defendants, WRHC & RC, INC., an Illinois Corporation d/b/a WOODSTOCK RESIDENCE, MARTY M. HIMEBAUGH, LPN and PENNY WHITLOCK, RN, without justifiable cause or provocation and without VIRGINIA’s consent, battered VIRGINIA against her will in that they intentionally and knowingly administered medications to VIRGINIA without a physician’s order or in violation of a physician’s order
19. As a direct and proximate result of one of more of the intentional acts and/or negligent acts or omissions, VIRGINIA was administered improper and unlawful doses of medications including, but not limited to, Morphine Sulfate, which caused or contributed to cause her death.
20. The Plaintiff, VICKIE LUND, as Special Representative and Special Administrator of the Estate of VIRGINIA COLE, Deceased, brings this action pursuant to the provisions of 755 ILCS 5/27-6, commonly known as the Survival Act of the State of Illinois
21. As a direct and proximate result of one or more of the Defendants’ intentional acts and/or negligent acts or omissions, VIRGINIA suffered injuries of a personal and pecuniary nature, past, present, and future, including, but not limited to, pain and suffering, disability and disfigurement, medical, funeral, and other related expenses; and VIRGINIA would have been entitled to receive compensation from the Defendants for these injuries, had she survived.
WHEREFORE, the Plaintiff, VICKIE LUND, as Special Representative and Special Administrator of the Estate of VIRGINIA COLE, Deceased, asks that a judgment be entered against the Defendants, WRHC & RC, INC., an Illinois Corporation d/b/a WOODSTOCK RESIDENCE, MARTY M. HIMEBAUGH, LPN and PENNY WHITLOCK, RN, jointly and severally, in a fair and just amount in excess of FIFTY THOUSAND DOLLARS ($50,000.00), which will fairly compensate the Plaintiff for the injuries sustained and for punitive damages in an amount which will serve to punish the Defendant and to deter the Defendant and others from similar conduct.

COUNT X

Vickie Lund vs. Woodstock Residence, Marty M. Himebaugh, LPN
and Penny Whitlock, RN

(Battery – Wrongful Death)

The Plaintiff, VICKIE LUND, as Special Representative and Special Administrator of the Estate of VIRGINIA COLE, Deceased, by and through her attorneys, LEVIN & PERCONTI, complains against the Defendants, WRHC & RC, INC., an Illinois Corporation d/b/a WOODSTOCK RESIDENCE, MARTY M. HIMEBAUGH, LPN and PENNY WHITLOCK, RN, as follows:

1-18. Plaintiff realleges paragraphs 1-18 of Count IX of this Complaint as and for paragraphs 1-18 of this Count X.
19. As a direct and proximate result of one of more of the intentional acts and/or negligent acts or omissions, VIRGINIA was administered improper and unlawful doses of medications including, but not limited to, Morphine Sulfate, which caused or contributed to cause her death.
20. The Plaintiff, VICKIE LUND, as Special Representative and Special Administrator of the Estate of VIRGINIA COLE, Deceased, brings this action pursuant to the provisions of 740 ILCS 180/1 et seq., commonly known as the Wrongful Death Act of the State of Illinois.
21. VIRGINIA left surviving his various persons who were his next of kin including, but not limited to, the following individuals.

a. Vickie Lund – daughter
b. Kevin Cole – son

22. VIRGINIA’S next of kin suffered injuries as a result of her death, including the loss of companionship and society. Further, VIRGINIA’S estate was diminished by virtue of the medical, hospital and funeral expenses that were incurred.
WHEREFORE, the Plaintiff, VICKIE LUND, as Special Representative and Special Administrator of the Estate of VIRGINIA COLE, Deceased, asks that a judgment be entered against the Defendants, WRHC & RC, INC., an Illinois Corporation d/b/a WOODSTOCK RESIDENCE, MARTY M. HIMEBAUGH, LPN and PENNY WHITLOCK, RN, jointly and severally, in a fair and just amount in excess of FIFTY THOUSAND DOLLARS ($50,000.00), which will fairly compensate the Plaintiff for the injuries sustained and for punitive damages in an amount which will serve to punish the Defendant and to deter the Defendant and others from similar conduct.

COUNT XI

Vickie Lund vs. Gurbax S. Saini, M.D., Alissa Nataupsky, Elizabeth Neathery, LPN, Lori R. McConnell, LPN, Ann M. Acevedo, LPN, Tracy Jaramillo, CNA, Rose Sy, LPN, Dori Diaz, LPN and Monarch Hospice & Palliative Care

(Respondents in Discovery)

The Plaintiff, VICKIE LUND, as Special Representative and Special Administrator of the Estate of VIRGINIA COLE, Deceased, by and through her attorneys, LEVIN & PERCONTI, complains against Respondents in Discovery, GURBAX S. SAINI, MD, ALISSA NATAUPSKY, ELIZABETH NEATHERY, LPN, LORI R. McCONNELL, LPN, ANN M. ACEVEDO, LPN, TRACY JARAMILLO, CNA, ROSE SY, LPN, DORI DIAZ, LPN, and MONARCH HOSPICE & PALLIATIVE CARE, INC., an Illinois Corporation, as follows:

1.Respondents in Discovery, GURBAX S. SAINI, MD, ALISSA NATAUPSKY, ELIZABETH NEATHERY, LPN, LORI R. McCONNELL, LPN, ANN M. ACEVEDO, LPN, TRACY JARAMILLO, CNA, ROSE SY, LPN, DORI DIAZ, LPN, and MONARCH HOSPICE & PALLIATIVE CARE, INC., an Illinois Corporation, are believed by Plaintiff to have information essential to the determination of who should properly be named as additional defendants in this action and are being named as a Respondents in Discovery so that they may be requested to respond to discovery pursuant to 735 ILCS 5/2-402, copies of which are attached hereto and incorporated herein.
2.The Plaintiff has attached to this Complaint Interrogatories and a Request for Production to be answered by each Respondent-in-Discovery and a Notice of Deposition for the Respondents-in-Discovery to give oral testimony in connection with this matter. (Exhibit “C”)

WHEREFORE, the Plaintiff, VICKIE LUND, as Special Representative and Special Administrator of the Estate of VIRGINIA COLE, Deceased, requests the Respondents in Discovery, GURBAX S. SAINI, MD, ALISSA NATAUPSKY, ELIZABETH NEATHERY, LPN, LORI R. McCONNELL, LPN, ANN M. ACEVEDO, LPN, TRACY JARAMILLO, CNA, ROSE SY, LPN, DORI DIAZ, LPN, and MONARCH HOSPICE & PALLIATIVE CARE, INC., an Illinois Corporation, respond to discovery initiated pursuant to the provisions of the applicable Illinois Statutes.

Respectfully submitted,
LEVIN & PERCONTI


BY: ________________________
STEVEN M. LEVIN
JORDAN S. POWELL
LEVIN & PERCONTI
325 North LaSalle Street
Suite 450
Chicago, Illinois 60654
(312) 332-2872
(312) 332-3112 (fax)
Attorney No. 55019

Labels: Alissa Nataupsky, Angel of Death", Marty Himebaugh, Penny Whitlock, Vickie Lund, Virginia Cole, Woodstock Residence