Appellate Victory - SJ -Mississippi

The Mississippi Court of Appeals has affirmed the trial courts granting of summary judgment against a Plaintiff represented by Wilkes and McHugh.  Dan Dias, of Mancuso and Dias (Tampa) along with Lynda Carter of Wise Carter (Biloxi) represented Delta Health Group.  Deiorio was a resident of a Delta facility from June 1999 to December 2000.  Wilkes brought a standard action against the facility alleging all of the usual abuses, violations and neglect.  The case remained stagnant for years, with almost no discovery, and no disclosure of experts by Wilkes.  The matter was set for trial several times but always continued well before any deadlines for disclosure arose.  Ultimately the matter was set for trial in January of 2007.  Approximately 50 days before trial the defense filed a Motion for Summary Judgment noting that the Plaintiff had failed to disclose experts timely as mandated by the Mississippi local rule 4.04(A) (noting that when the trial court does not issue a "trial order" there are a set of rules that kick in).  In response to our Motion Wilkes filed, 42 days before trial, a disclosure of two experts, and an affidavit from the medical expert.  It should be noted that the affidavit was the standard form and substance  affidavit that Wilkes uses in all states.

We argued, and the trial court, and now appellate court have agreed, that Wilkes failed to timely disclose his experts and had no good reason or "special circumstances" to justify the late disclosure.  Without expert testimony to support their case the Plaintiff would not be able to proceed. 

Additionally, and perhaps most significantly for the industry and for future use, the two Courts have held that the affidavit filed by Wilkes, even if it had been accepted as timely filed, was insufficient.  The Court found that the affidavit lacked any specifics as to the standard of care, a breach of that care, and a nexus to an injury.  The affidavit merely stated conclusions.

This ruling provides strong arguments that the Wilkes model of using poor outcomes as proof of neglect are insufficient.

Written by and shared with the permission of Attorney Dan Dias, Mancuso & Dias  

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