Judge Declares Mistrial in Miss. Nursing Home Case

     Following four days of testimony, U.S. District Judge W. Allen Pepper, Jr. declared a mistrial on August 6, 2008 in a nursing home negligence action brought by the family of a former resident.

     Throughout the discovery period as well as during the formulation of the final pre-trial order, plaintiff claimed the defendant’s negligence lead to the wrongful death of the resident, bilateral amputations, and numerous other breaches in the standard of care. On the first day trial, plaintiff notified defendant of their intent to dismiss the wrongful death claim as well as the second amputation. Plaintiff then sought to prevent the defendants from cross examining her experts on these issues. The court denied this relief after noting the experts discussed these issues in their reports as well as during their depositions.

     During cross examination of the plaintiff, counsel objected to a line of questioning and indicated plaintiff was withdrawing all claims for the first seven years of the residency period. Based on this representation, defense counsel shortened his cross examination of the plaintiff. After the plaintiff concluded her testimony, and in the presence of the jury, a dispute arose as to whether plaintiff actually withdrew her claims for the first seven years. After reviewing the transcript, the court concluded that the plaintiff had attempted to re-define her case on a day-to-day, if not hour-by-hour basis. At the request of the defendants, a mistrial was declared.

     In his order (see attached), Judge Pepper directed both parties to "fully brief the question of how circumstances during the first trial have and will affect the law of the case" relating to the use of surveys, expert testimony and witness examination.

     The judge also gave specific direction on how jury instructions were to be submitted.

     The case recently settled prior to a second trial.

     A copy of the trial transcript is available upon request. It is worth noting that defendant’s were allowed to cross examine the plaintiff’s causation expert, Dr. Loren Lipson, regarding the amount of income he had been paid by plaintiff’s counsel (Wilkes and McHugh). Prior to trial we were able to secure copies of 1099’s showing the amount of income paid to Dr. Lipson by Wilkes from 2002 – 2005 (the total amount was slightly less than $2,000,000). Another favorable development occurred when the court allowed the defendants to cross examine the plaintiff’s nurse expert on surveys that had been conducted at her facility in New York. Juror interviews post trial revealed this cross examination was extremely effective and discredited the plaintiff’s nurse expert.

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