Aug 23 2022

Morrison Mahoney's Joe Desmond and Kevin Buono Prevail in the Massachusetts Appeals Court

Boston partner Joe Desmond and associate Kevin Buono prevailed in the Massachusetts Appeals Court on an appeal of a defense verdict in a wrongful death case against our nursing home client.  The case arose from the fatal fall of a nursing home patient from a hoyer lift operated by the nursing home’s staff. The jury found that the staff were not negligent in causing the decedent’s injuries during the transfer of the patient from a chair to his bed.

The Appeals Court rejected the plaintiff’s arguments that the trial court committed reversible error in the exclusion of two liability experts (a geriatrician that practiced in nursing homes and a nursing home administrator) given their personal lack of training and experience in the operation of a hoyer lift. The Appeals Court also affirmed the trial court’s evidentiary ruling requiring the redaction of the death certificate, which contained two statements regarding liability (“hoyer lift malfunction” and "prolonged Hoyer lift suspension"). The Appeals Court agreed that those statements expressly supported the plaintiff's theories that Satiro's death was attributable to the facility's negligent operation of the Hoyer lift or a negligent failure to properly inspect or maintain it, and thus were not admissible under Mass. Gen. Laws. C. 46, section 19.

The Court rejected the plaintiff’s argument that he was entitled to a jury instruction on Res Ipsa Loquitur, finding that the plaintiff failed to object to the jury charge after the instructions were given, while also noting that he would not have been entitled to the instruction on the state of the evidence given the absence of expert and/or factual testimony that would have enabled the jury to conclude the incident would not occur in the absence of negligence. The Court also agreed that the Plaintiff was not entitled to an instruction on Consciousness of Guilt by virtue the the nursing home’s failure to report the incident to the Department of Public Health as required by law.  At trial, the plaintiff attempted to establish  the requisite factual foundation of the failure to report through his liability expert, which was excluded as hearsay.  

Finally, the Court upheld the directed verdict entered in favor of 5 related corporate entities (real estate company, management company and entities that served as “managers” or “members” of the LLC that was licensed to operate the nursing home), finding that there was no evidence of a matter of law to establish a “joint venture” in the operation of the nursing home.

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