Presenting a live 90-minute webinar with interactive Q&A Nursing Home Litigation and Admissibility of Evidence: Proving or Challenging Authentication, Relevance and Hearsay THURSDAY, JULY 20, 2017 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Mark A. Cox, Founder, Mark A. Cox , Edmond, Okla. Ahsan A. Jafry, Esq., Burns White , Cherry Hill, N.J. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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Nursing Home Litigation and Admissibility of Evidence Mark A. Cox Law Office of Mark A. Cox, PLLC 15401 N. May Ave. Suite 400 Edmond, OK 73012 405.285.544 Mark@MarkCoxLaw.com www.MarkCoxLaw.com
Types of critical evidence in nursing home injury cases Former Employee Testimony I think one of the most important types of evidence in a nursing home • case comes from former employee testimony. I’ve developed a systematic way to discover and secure former nursing home employee testimony which is the subject of another seminar. However, as far as getting such testimony admitted at trial, it comes down the relevance. There are different arguments used to admit nursing home employee testimony based on their case-specific knowledge base. If the nursing home employee took care of the resident at issue, then there is a strong probability such will be admissible at trial. It would be very hard for the nursing home to argue otherwise. 6
Types of critical evidence in nursing home injury cases Former Employee Testimony • It’s a little more difficult if the former nursing home employee did not take care of the resident at issue. However, as long as the former employee worked at the nursing home during the resident’s admission, and was in a position to observe the type of care given at the facility, then such testimony will likely be admitted at trial over any relevancy argument by the defense. • Former nursing home employees that worked at the facility close in time, either before or after your resident’s admission still may be able to testify about the conditions they witnessed and were actively involved in at the nursing home. It’s a little tougher argument but it is certainly possible. 7
Types of critical evidence in nursing home injury cases Nurse Expert’s Opinions as to Standard of Care Related to Federal and State Regulations Your nurse in his or her deposition should be able to explain why such • regulations are part of the standard of care for nursing homes. You can use such that deposition testimony to fight off any motion in limine or partial summary judgment motion on this issue. Assuming you win these motions, be sure and educate the judge, again, shortly before trial using a trial brief. If you are unable to convince the judge that the federal and state regulations • should be considered as subjects of negligence per se instructions, then at the very least, you should be able to get such regulations admitted at trial as evidence of negligence. 8
Types of critical evidence in nursing home injury cases Nurse Expert’s Opinions as to Standard of Care Related to Federal and State Regulations Because federal and state nursing home regulations are relatively plaintiff • friendly, plaintiff’s attorneys should work very diligently in order to get such regulatory evidence admitted at trial as the standard of care for nursing homes as well as the subjects of negligence per se instructions. The first step in getting such regulations admitted begins with depositions of nursing home personnel. Routinely, staff and supervisory LPNs and RNs will admit during their • depositions that regulations, both federal and state are part of the standard of care for nursing homes. Once they’ve admitted that, you should not have a difficult time getting such evidence to the jury. If, however, nursing home employees have been woodshedded properly by defense counsel, they may not admit as much. At that point, you must rely on your expert nurse. 9
Types of critical evidence in nursing home injury cases Owners’ Culpability • In order to reach as many couple defendants as possible, I routinely sue all owners of the operating entity no matter what percentage of ownership they hold. These individual owners desperately try to get dismissed from the lawsuit claiming that only the operating entity that holds the license and possibly the management company for the nursing home should be defendants. They argue such individual owners are simply shareholders in a corporation and therefore protected by corporate law. However, if the owners participate, in any meaningful way in the operation of the nursing home, then the court will usually allow me to pursue them in the lawsuit. If, however, an individual owner has never stepped foot in the nursing home and has never participated meaningfully in the operation of the nursing home, then the defense has a good argument that they should be dismissed from the lawsuit. 10
Types of critical evidence in nursing home injury cases Key Exhibits • Below is a list of exhibits that I typically use as part of my preliminary and final exhibit lists in nursing home cases. The list encompasses the types of evidence, critical to support your claims against the nursing home and its operators/owners. The list will naturally be longer depending on the specific defendants I’m suing. You should be able to lay the proper foundation for authenticating most of • the nursing home documents listed below by taking a corporate deposition. Whoever the nursing home produces should be able to properly identify and verify the accuracy of such exhibits. It is up to you to develop the necessary evidence to convince the court that such evidence is relevant and therefore admissible. You should also have your nurse expert testify in his/her deposition about • all of the below evidence you want admitted at trial. If the expert identifies such evidence as the kind experts in his/her field rely on and in fact relied on to form his/her opinions, you should have no problem getting such evidence admitted at trial. 11
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