McCumber Daniels Secures Final Summary Judgment, Dismissing Nursing Home Case on Eve of Trial
McCumber Daniels is pleased to announce that it has successfully argued and received an order granting final summary judgment in a nursing home case completely dismissing the entire action only days before trial. Attorney Mark Hartig drafted a motion for final summary judgment and argued that the Plaintiff’s case should be dismissed based upon an impermissible stacking of inferences made by the Plaintiff to establish negligence on the part of the nursing home staff. The case had been set to begin trial on February 14, 2005 before Judge Crockett Farnell in Clearwater, Florida.
The case involved a 92 year old resident of Bon Secours Maria Manor who was discovered to have suffered a spiral fracture of her tibia while at the nursing home. Subsequent investigation could not establish a cause of the fracture. Plaintiff had argued that the evidence showed that the resident was non-ambulatory and dependant on staff for turning and repositioning and transfers. The Defense argued that there was a reasonable possibility that the resident could have externally rotated her foot to the extent that she would suffer the spiral fracture based on record evidence of her osteoporosis and testimony that the resident had some bed mobility.
The Court ruled that the Plaintiff had not established their theory of liability to the exclusion of any other reasonable theories or inferences, finding that the Plaintiff’s “entire claim is based upon inferences” and that “there are multiple reasonable theories to explain the initial inference of how (the resident) received the injury, not all of which implicate the Defendant.”
The Plaintiff had alleged, and presented expert testimony, that the spiral fracture suffered by the resident caused her death some five weeks after the discovery of the fracture. The case had been scheduled for a 7 day jury trial, and Plaintiff’s demand was $750,000. After dismissal of the action, the Defense filed a motion for attorney’s fees as a proposal for settlement had been served and rejected in March of 2004.
