May 20, 2022

The Commonwealth of Kentucky Court of Appeals (“Kentucky Appellate Court”) unpublished opinion dated March 4, 2022 affirmed a jury’s verdict against a nursing home for the wrongful death of a resident due to the failure to provide appropriate bowel and nutritional management, catheter care, and wound care, which ultimately causing the resident’s death. The defendant nursing home appealed, arguing that the trial court abused its discretion in denying its motion for a judgment notwithstanding the verdict (JNOV) and its motion for a new trial, arguing 1) alleged juror misconduct attested to by post-trial juror affidavits, and 2) alleged evidentiary issues.

The Kentucky Appellate Court held “considering Harlan’s untimely submission of the affidavits and the additional concerns addressed by the trial court, we cannot conclude that the trial court abused its discretion here by denying Harlan’s motion for a new trial.”

The Kentucky Appellate Court further stated: “The general rule is that evidence of settlement negotiations or agreements are inadmissible. KRE2408. However, there is an exception when such evidence is offered to prove “bias or prejudice of a witness . . . .” KRE 408. Harlan specifically cites that Mr. Howard’s son, Donald Howard, changed his testimony at trial from what he had stated in his earlier deposition. Accordingly, Harlan argues that it should have been permitted to introduce evidence of the settlement agreement with Britthaven in order to demonstrate Donald Howard’s bias. We agree with the Estate that although KRE 408 allows admission of such evidence under certain circumstances, the rule does not provide when such evidence must be admitted. Based on the reasoning provided in support of Harlan’s argument on this issue, we cannot conclude that the trial court abused its discretion here.”

A dissenting opining stated: “Harlan alleges that deposition transcripts were inappropriately sent back with the jury during deliberations. And at least one juror affidavit asserts that the jury actually reviewed the discovery-deposition of Dr. Gregory Dye during its deliberations. While Dr. Dye testified at trial, his deposition was not admitted into evidence. These allegations raise serious and compelling concerns about the integrity of the judicial process in this case … I am far more concerned by the allegation that the depositions were provided to the jury outside of the normal court process. This allegation implies ex parte contact during deliberations, as well as potential jury tampering … Harlan does not explain how this matter came to its attention following trial … While any private communication, contact, or tampering with a jury is presumptively prejudicial, the moving party must demonstrate that the alleged conduct presents a likelihood of affecting the verdict … I would remand this matter for further inquiry and hearings into whether there was improper contact with the jury during deliberations and whether such contact affected the verdict in this case. If the trial court finds so, it should vacate the judgment, order a new trial, and grant other appropriate relief. If the court finds no improper contact with the jury, then I would agree that the judgment should be affirmed for the reasons stated in the majority Opinion.”

Harlan Nursing Home, Inc. v. Howard, No. 2019-CA-1261-MR.

If you or a loved one suffered injuries (or worse) while a resident of a nursing home in Kentucky or in another U.S. state due to nursing home neglect, nursing home negligence, nursing home abuse, a nursing home fall, or the nursing home failing to properly care for a vulnerable adult, you should promptly find a nursing home claim lawyer in Kentucky or in your state who may investigate your nursing home claim for you and file a nursing home claim on your behalf or behalf of your loved one, if appropriate.

Click here to visit our website to be connected with medical malpractice attorneys (nursing home claim attorneys) in your U.S. state who may assist you with your nursing home claim, or call us toll-free in the United States at 800-295-3959.

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