                IN THE SUPREME COURT OF MISSISSIPPI

                        NO. 2004-CA-01478-SCT

MARINER HEALTH CARE, INC.; GRANCARE,
INC.; EVERGREEN HEALTHCARE, INC.;
NATIONAL HERITAGE REALTY, INC.; GEORGE
D. MORGAN; M. SCOTT ATHANS; J. D. LEE;
CHARLIE R. SINCLAIR, JR.; ANGELA M.
WHITTINGTON; AND JOHN H. MERRELL

v.

ESTATE OF CHARLES E. EDWARDS, BY AND
THROUGH NEVONNIA TURNER,
ADMINISTRATRIX OF THE ESTATE OF
CHARLES E. EDWARDS, FOR THE USE AND
BENEFIT OF THE ESTATE OF CHARLES E.
EDWARDS, AND FOR THE USE AND BENEFIT
OF THE WRONGFUL DEATH BENEFICIARIES
OF CHARLES E. EDWARDS, DECEASED


DATE OF JUDGMENT:               02/18/2004
TRIAL JUDGE:                    HON. RICHARD A. SMITH
COURT FROM WHICH APPEALED:      LEFLORE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:       WILLIAM W. McKINLEY, JR.
                                LORRAINE BOYKIN
ATTORNEYS FOR APPELLEE:         D. BRYANT CHAFFIN
                                SUSAN NICHOLS ESTES
                                KENNETH L. CONNOR
NATURE OF THE CASE:             CIVIL - WRONGFUL DEATH
DISPOSITION:                    REVERSED AND REMANDED - 09/13/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




     EN BANC.

     WALLER, PRESIDING JUSTICE, FOR THE COURT:
¶1.    The present case concerns a wrongful death claim against a nursing home and its

parent companies. We find that the failure to investigate alleged juror misconduct, the

admission of improper evidence, and the failure to distinguish among defendants compel us

to reverse the judgment for the Plaintiff and remand the case for further proceedings.

                                          FACTS

¶2.    Charles Edwards was admitted to the Greenwood Health and Rehabilitation Center

on December 27, 1994. He was forty years old, and due to childhood brain damage was

severely mentally retarded and suffered from severe autism, grand mal seizure disorder, and

a swallowing disorder that had led to chronic pneumonia. He had an estimated I.Q. of 13 and

a mental age of two years and three months. He could not speak and had never attended

school. Throughout most of his life, he was able to feed himself, walk and run, and use the

toilet without assistance. However, prior to his admittance to Greenwood Health, his health

had deteriorated, he had difficulty walking, and he was increasingly unresponsive to family

members.

¶3.    In October 1996, Greenwood Health recommended that Edwards have a PEG feeding

tube inserted into his stomach, because he was refusing food orally and had lost significant

weight. Though Edwards’s family initially refused to authorize the insertion of the feeding

tube, by April 1997 they had accepted the necessity of the procedure. Initially, Edwards

responded well to PEG feeding, but by October 1998, his body had stopped processing the

nutrients delivered through the tube. Between April 1999 and June 1999, Edwards was

hospitalized for gastrointestinal bleeding, and by August 1999 had lost twenty-two pounds.

Edwards’s condition deteriorated steadily. From May 2001 until February 2002, Edwards

                                             2
spent 188 days in the Greenwood-Leflore Hospital. Intravenous feeding was not ordered

until Edwards’s final hospitalization on February 2, 2002. Edwards died on February 16,

2002, from cardiac arrest caused by pneumonia, which was in turn the result of volume

depletion, a condition caused by a lack of liquid in the body’s cells.

¶4.    On December 7, 2001, Edwards’s family brought suit for compensatory and punitive

damages against National Heritage Realty, the owner of Greenwood Health, its parent

companies, Grancare, Inc., Evergreen Healthcare, and Mariner Healthcare, Inc., and against

five individuals in their capacities as administrators or licensees of Greenwood Health.1 The

complaint alleged negligence, medical malpractice, gross negligence, fraud, and breach of

fiduciary duty. After Edwards’s death, the family amended its complaint to include a claim

for wrongful death. The trial began on December 8, 2003. The jury found each of the

defendants liable for Edwards’s death, and awarded $1.5 million in compensation.

Subsequently, the trial judge determined that the jury should be allowed to consider punitive

damages, and, after considering the evidence, the jury awarded $5 million in punitive

damages. Mariner raises eleven issues on appeal, which we have consolidated into seven.

                                       DISCUSSION

I.     DENIAL OF JUDGMENT NOTWITHSTANDING THE VERDICT

¶5.    Greenwood Health first argues that the trial court erred in denying its motion for

Judgment Notwithstanding the Verdict (JNOV). Mariner contends that Edwards’s estate




       1
       Though distinctions among the individual defendants will be important in this
opinion, for the sake of convenience, when referring to all of the defendants, we will use the
term “Mariner.”

                                              3
failed to present a prima facie case for liability because the Estate’s expert, Dr. Kenneth

Olson, did not establish that the negligence of the nursing home was the proximate cause of

Edwards’s death.

¶6.    This Court reviews the grant or denial of a motion for directed verdict de novo, and

will consider the evidence in the light most favorable to the appellee, giving that party the

benefit of all favorable inferences that may reasonably be drawn from the evidence. Whitten

v. Cox, 799 So. 2d 1, 7 (Miss. 2000). So long as substantial evidence supports the verdict,

that is, evidence of such quality and weight that reasonable and fair-minded jurors in the

exercise of impartial judgment might have reached different conclusions, then this Court will

affirm. Id.

¶7.    In determining whether the negligence of a party caused a plaintiff’s injuries, this

Court has held that:

       That negligence which merely furnished the condition or occasion upon which
       injuries are received, but does not put in motion the agency by or through
       which the injuries are inflicted, is not the proximate cause thereof. However,
       if an antecedent negligent act puts in motion an agency which continues in
       operation until an injury occurs it would appear to be more like a second
       proximate cause than a remote and unactionable cause.

Eckman v. Moore, 876 So. 2d 975, 981-82 (Miss. 2004) (citations omitted) (emphasis

added).

¶8.    In cases alleging that death was caused by the negligence of a health care provider,

proximate cause must be established by a medical doctor. Richardson v. Methodist Hosp.

of Hattiesburg, Inc., 807 So. 2d 1244, 1248 (Miss. 2002). This Court does not require that

expert testimony conclusively establish the cause of death. Blake v. Clein, 903 So. 2d 710,



                                             4
731-32 (Miss. 2005); Stratton v. Webb, 513 So. 2d 587, 590 (Miss. 1987). However, expert

testimony must, at a minimum, show that deviations from the standard of nursing care caused

or contributed to the decedent’s death. Richardson, 807 So. 2d at 1248.

¶9.    Dr. Kenneth Olson testified that Greenwood Health breached the standard of care in

failing to monitor Edwards’s nutritional needs and bowel movements, in failing to

recommend intravenous feeding, known as “TPN feeding,” to the center’s medical director,

and in not recommending that Edwards be transferred to a multiple-specialty facility to

address his worsening condition. He further opined that the failure of the nursing home to

recommend the TPN treatment was a contributing cause of Edwards’s death.

¶10.   Dr. Olson’s testimony did not conclusively establish the liability of the nursing home.

He admitted that, in his deposition prior to trial, he stated that the nursing home did not

breach the standard of care in its feeding program. He admitted that from 1999 until his

death in 2002, Edwards was spending increasing amounts of time in the Greenwood-Leflore

Hospital, and that half of all hospital patients are malnourished because of their treatment.

Finally, he admitted that no doctor at Greenwood-Leflore ordered TPN treatment until 2002,

despite the fact that the hospital staff had ample time to determine whether such a procedure

was necessary.

¶11.   Considered as a whole, Dr. Olson’s testimony was sufficient to present a prima facie

case for the liability of Greenwood Health. He testified to a causal nexus between the actions

of Greenwood Health and Edwards’s death. While he did not rule out the possibility that

other parties were liable, his testimony that the negligence of Greenwood Health contributed

to Edwards’s death is sufficient to establish proximate cause. Viewed in the light most

                                              5
favorable to Edwards’s estate, the trial court did not abuse its discretion in denying the

motion for a judgment notwithstanding the verdict. This assignment of error is therefore

without merit.

II.    DENIAL OF MOTION TO CONTACT JURORS REGARDING ALLEGED
       JUROR MISCONDUCT

¶12.   On December 27, 2002, after the jury rendered a verdict for Edwards’s estate, Mariner

was contacted by one of the jurors, Juror “B,” who alleged that another juror, Juror “W,” had

made prejudicial statements during the trial and in jury deliberations. Juror B alleged in an

affidavit that Juror W, on the first day of trial, said that “she had made up her mind in favor

of the plaintiff; that she could not wait to give money to the plaintiff; and that there was

nothing anyone could say that could change her mind.” The affidavit alleged several other

statements, including: (1) that Juror W knew a resident at Greenwood Health, who to the

affiant’s best recollection was Juror W’s relative; (2) that she had personally witnessed this

resident lying in her own waste and receiving poor care, and that because that resident had

received poor care, Edwards must also have received poor care; and (3) that Juror W saw

other residents unknown to her receive poor care when she visited the nursing home.

Furthermore, the affiant referred to general comments by jury members that “white people

have been taking black people’s money and black people have figured out that lawsuits are

the way to get the money back,” and that “jurors needed to stick together to get the money

back to black people and that money should be given in this case because the plaintiff was




                                              6
black.” 2 The affidavit did not precisely clarify which jurors made these statements. Such

remarks are attributed to “juror comments” and were apparently made by multiple jurors.

The affidavit implictly included Juror W among those who made such statements.

Nevertheless, even if Juror W never made these comments, the other statements that were

directly attributed to Juror W are material to the issue at hand.

¶13.   Relying on this affidavit, Mariner moved to contact additional jurors and to stay the

judgment until an inquiry had been conducted. The trial court ruled that the juror’s affidavit

was not competent evidence because it failed to allege impermissible external influences and

that, even if the statements had in fact been made, they represented the juror’s knowledge of

the witnesses and the case and, as such, did not constitute the sort of outside influence

contemplated by Mississippi Rule of Evidence 606(b). The trial court therefore denied

Mariner’s motions and entered its final judgment. On appeal, Mariner contends that the trial

court erred in denying its motion to contact additional jurors.

¶14.   Rule 606(b) of the Mississippi Rules of Evidence prohibits jurors from testifying to

statements made during jury deliberations, subject to an exception for extraneous prejudicial

information, not brought out at trial, that was improperly put before the jury. M.R.E. 606(b).

This prohibition on the impeachment of juries is crucial to the viability of our legal system,

since it protects the jury’s ability to candidly discuss issues free from the fear that they will

be called to justify their decision. Salter v. Watkins, 513 So. 2d 569, 571 (Miss. 1987). The

rule is designed both to prevent the harassment of jurors and to prevent a juror from



       2
          The affidavit did not specify whether these other statements were made during the
trial or in jury deliberations .

                                               7
remaining silent during deliberations and later asserting improper influence.              Id.

Consequently, while a juror may testify whether outside influence or information was

improperly presented before the jury, Rule 606(b) categorically prohibits testimony regarding

specific statements made during jury deliberations or any influence such information had on

his or her mental processes. Id.

¶15.   A trial court is obligated to investigate an allegation of misconduct when the party

alleging misconduct makes a showing of extrinsic evidence sufficient to overcome the

presumption of jury impartiality. United States v. Infelise, 813 F. Supp. 599, 605 (N.D. Ill.

1993). Where a party fails to make this threshold showing, no inquiry into the jury’s verdict

is required. Tanner v. United States, 483 U.S. 107, 117-27, 107 S. Ct. 2739, 2745-51; 97

L. Ed. 2d 90, 103-11 (1987). A new trial is appropriate only when the jury received facts that

concern a material issue in dispute and they are qualitatively different from the evidence

admitted at trial. Gladney v. Clarksdale Beverage Co., 625 So. 2d 407, 412 (Miss. 1993).

In determining whether outside information is prejudicial, reversal is warranted where there

is overwhelming evidence that a juror withheld information for which he or she would have

been challenged by one of the parties and subsequently relayed that exact disqualifying

information to the jury during deliberations. T. K. Stanley, Inc. v. Cason, 614 So. 2d 942,

950 (Miss. 1992).

¶16.   In the present case, the trial court found that the juror’s affidavit was not competent

because it concerned the mental impressions of a juror during deliberations.           In the

alternative, the trial court held that a new trial was not warranted because information about

the alleged mistreatment of other residents of the nursing home was not qualitatively

                                              8
different from the evidence put on by Edwards’s estate. While the affidavit did contain

information regarding the mental impressions of both the speaker and the allegedly offending

juror, it also specifically alleged that the juror failed to truthfully answer questions during

voir dire.

¶17.   The standard for the review for juror misconduct arising from a failure to respond to

questions during voir dire is as follows:

       Where a prospective juror in a criminal case fails to respond to a question by
       defense counsel on voir dire, the Court should determine whether the question
       was (1) relevant to the voir dire examination, (2) whether it was unambiguous,
       and (3) whether the juror had substantial knowledge of the information sought
       to be elicited. If all answers to the above questions are affirmative, then the
       court determines if prejudice to the defendant in selecting the jury could be
       inferred from juror's failure to respond.

Barker v. State, 463 So. 2d 1080, 1083 (Miss. 1985) (citing Odom v. State, 355 So. 2d 1381

(Miss. 1978)). Though this test has been applied almost exclusively in criminal trials, it is

equally applicable to allegations of juror misconduct in civil suits. See Stanley, 614 So. 2d

at 948; Salter v. Watkins, 513 So. 2d 569, 573 (Miss. 1987). In Stanley, the defendant

corporation moved for a new trial after submitting an affidavit that alleged one of the jurors

had said during recesses that she knew the plaintiff, that the plaintiff should get the money,

and that the vice president of the defendant company could not be trusted. Id. The

defendant’s motion also alleged that the juror had failed to disclose that her brother had been

killed while working for the defendant. Id. The trial court allowed the parties to question

the juror. The juror admitted that she knew the plaintiff, but denied speaking about the

parties to any other jurors before deliberation. Id. The trial court ruled that the defendant’s

voir dire questions were not specific enough to make the juror’s failure to disclose her

                                              9
knowledge reversible error, and declined to address allegations of misconduct during jury

deliberations. Id. at 949. We reversed, finding that “[t]he evidence is overwhelming that

[the juror] withheld material information during voir dire which would have resulted in her

being challenged by [the defendant], then relayed that exact disqualifying information to the

other members of the jury during deliberations.” Id. at 950. In doing so, we emphasized that

“where, as a matter of common experience, a full and correct response would have provided

the basis for a peremptory challenge, not rising to the dignity of a challenge for cause, our

courts have greater discretion, although a discretion that should always be exercised against

the backdrop of our duty to secure to each party trial before a fair and impartial jury.” Id.

at 949 (citing Myers v. State, 565 So. 2d 554, 558 (Miss. 1990)).

¶18.   The alleged misconduct in the present case is similar to that found to be reversible

error in Stanley. During voir dire there were at least two instances in which the juror

withheld material disqualifying information. First, in the context of assuring that venire

members could reach a verdict based solely on the law and evidence presented at trial,

plaintiff’s counsel asked, “[I]s there anybody who has any reason to feel that there is any

reason that we haven’t touched on, that you feel that we ought to know that would adversely

impact your ability to serve as a juror in this case, that we haven’t discussed thus far?”

Second, plaintiff’s counsel later asked, “Is there anyone here who just the mention of a

nursing home invoke [sic] negative feelings, negative experiences?” The juror in question

did not raise her hand or otherwise indicate that she had any experience with nursing homes.

The question by defense counsel was relevant, unambiguous, and the juror had substantial




                                             10
knowledge of the information requested. If accurate, her statement on the first day of trial

that she had already decided for Edwards’s estate clearly belied her implied impartiality.

¶19.   There is no unbending rule for every situtation that might arise on the voir dire of

prospective jurors. Odom, 355 So. 2d at 1383. Rather, each case must be decided based on

the facts presented. Id. Additionally, we must consider the relationship between the question

posed and the juror’s knowledge. See Buckley v. State, 772 So. 2d 1059, 1064 (Miss. 2000)

(question during voir dire was ambiguous “as it related” to a particular juror); T. K. Stanley,

Inc. v. Cason, 614 So. 2d 942, 949 (Miss. 1992) (question on voir dire should have elicited

a response in light of juror’s knowledge).

¶20.   The allegations listed in the affidavit therefore met the threshold for a judicial inquiry,

and the trial court erred in refusing to conduct one. We find that, in this case, the failure to

investigate juror misconduct jeopardized the parties’ right to a fair and impartial trial, and

that consequently the judgment must be reversed.

III.   FAILURE TO CONDUCT A SEPARATE EVIDENTIARY HEARING AND
       FAILURE TO EXCLUDE PREJUDICIAL EVIDENCE FROM THE
       COMPENSATORY PHASE OF THE TRIAL

¶21.   In pretrial motions, Mariner moved to exclude various “types” of evidence, including

evidence of Mariner’s corporate practices, evidence of patterns of care unrelated to Edwards,

and errors in the nursing home’s documentation that did not affect Edwards. The trial court

found these motions vague and reserved judgment on the admissibility of specific evidence

until trial. After the jury found in favor of Edwards’s estate, the trial court considered the

information that had been presented, and ruled that the issue of punitive damages should be

presented to the jury. On appeal, Mariner argues that the trial court erred in not excluding

                                               11
prejudicial information during the compensatory phase of the trial and in relying on evidence

introduced during the compensatory phase to determine whether consideration of punitive

damages was warranted.

¶22.   When deciding whether to submit the issue of punitive damages to a trier of fact, the

trial court looks at the totality of the circumstances, as revealed in the record, to determine

if a reasonable, hypothetical trier of fact could find either malice or gross neglect and

reckless disregard. Bradfield v. Schwartz, 936 So. 2d 931, 936 (Miss. 2006) (citing Ross-

King-Walker, Inc. v. Henson, 672 So. 2d 1188, 1191 (Miss. 1996)). The trial court’s

determination whether a case warrants the consideration of punitive damages will not be

overturned absent an abuse of discretion. Id. (citing Doe ex rel. Doe v. Salvation Army, 835

So.2d 76, 81 (Miss. 2003). Evidence which does not pertain to compensating the plaintiff

but instead seeks to show the malicious or grossly negligent character of the defendant’s

actions should not be heard by the jury until liability has been determined. Bradfield, 936

So. 2d at 938. Evidence may, of course, be probative of both liability and the assessment of

punitive damages.      Similarly, evidence may be deemed inadmissible during the

compensatory phase of trial but relevant during the evidentiary hearing on punitive damages.

In making determinations about the relevance of evidence to the liability of the parties, we

are guided by the underlying purpose of bifurcation to “prevent issue confusion and to create

a barrier between testimony regarding the fundamental issue of liability and the inflammatory

issue of egregious conduct.” Hartford Underwriters Ins. Co. v. Williams, 936 So. 2d 888,

897 (Miss. 2006).




                                              12
¶23.   The failure to conduct an evidentiary hearing on punitive damages, where the plaintiff

has sought such damages and the jury has awarded compensatory damages, constitutes

reversible error. See Bradfield, 936 So. 2d at 938. Similarly, the failure to bifurcate a case

involving claims for punitive damages may constitute reversible error. Hartford, 936 So. 2d

at 897. However, the trial court in this case properly conducted an evidentiary hearing after

the jury returned a verdict for compensatory damages in favor of Edwards’s estate. The trial

judge heard the evidence presented during the compensatory damages phase of the trial and

determined that consideration of punitive damages was appropriate. Mariner’s claim that the

trial court failed to conduct a hearing is not supported by the record, and the assignment of

error is without merit.

¶24.   Mariner also argues that the trial court erred in admitting evidence relevant only to

punitive damages during the compensatory phase of the trial. As noted above, the trial court

did not deny Mariner’s motions in limine, but directed counsel to raise objections when the

specific evidence was presented. During Edwards’s case-in-chief, Mariner did object to

plaintiff’s counsel reading into the record the deposition of Roy Dumas, a regional vice-

president of the company. Mariner argued that the introduction of the evidence involved

“two other cases involving other facilities, and [plaintiff’s counsel] is seeking parts of this

deposition for some generalized testimony, [and] it’s not necessarily applicable to this case.”

Dumas testified about various aspects of the Mariner corporate structure, including a

compensation system that was tied to economic efficiency, his own duties, his focus on the

financial condition of the nursing homes rather than the instances of weight loss and pressure

sores, and the company’s “four C’s”: care, cost, census, and cash, which were supposed to

                                              13
guide their business decisions. As a theory of their case throughout trial proceedings,

plaintiff’s counsel relied on this testimony and the testimony of Mariner’s senior vice

president and treasurer, Boyd Gentry, to portray Mariner as a company focused on financial

success rather than competent care.

¶25.   The standard of review regarding the admission or exclusion of evidence is abuse of

discretion, and error will not be deemed reversible unless the error adversely affects a

substantial right of a party. Whitten, 799 So. 2d at 13. Edwards’s estate argues that evidence

of general corporate practices was necessary to demonstrate that Mariner’s budgeting policies

caused Edwards’s injuries and death. However, Edwards’s estate submitted no evidence that

would establish a causal connection between the budgeting policies of Mariner and the

injuries and death suffered by Edwards. The estate did not show that Greenwood Health was

understaffed because of the budgeting policies, nor that Greenwood Health had been denied

funding by Mariner.

¶26.   The information in the depositions of Gentry and Dumas would certainly have been

relevant at the punitive phase to establish whether Edwards’s treatment was an aberration or

consistent with company practice. However, the testimony was not probative to the issues

of duty, breach, causation, or injury. Given the use of the testimony at trial to emphasize the

“bad corporate character” of Mariner, we find that admission of the testimony materially

prejudiced the defendants. In light of this prejudice, the jury’s verdict must be reversed.

IV.    EVIDENTIARY RULINGS

¶27.   Mariner argues that the trial court erred in admitting evidence of short-staffing,

wage rates, and alcohol consumption. They contend that Edwards’s estate provided no

                                              14
testimony that connected such evidence and Edwards’s injuries and death.                In the

alternative, they argue that such information was relevant only at the punitive damages

phase of the trial. As noted above, the admission or exclusion of evidence is reviewed for

an abuse of discretion. Whitten, 799 So. 2d at 13.

       A.     Generalized Evidence of Short-Staffing

¶28.   Mariner first claims that the trial court erred in admitting testimony from nursing

assistants that they felt overwhelmed and had trouble providing competent care. Mariner

argues that such testimony is inadmissible unless the alleged short-staffing caused the

assistants to give inadequate care specifically to Edwards. The argument is misplaced.

Each of the nursing assistants who testified for Edwards’s estate had been responsible for

Edwards’s care at some point during his time at Greenwood Health. Several of them

testified that understaffing prevented them from turning Edwards as often as was

necessary to prevent bedsores. One nursing assistant testified that she was not able to

change Edwards as often as she should have because of short-staffing. Another alleged

that the assistant whose shift came before hers gave Edwards substandard care. All of the

assistants testified that they witnessed Edwards’s deterioration.

¶29.   Mariner correctly notes that the Court of Appeals has held that generalized

testimony of short-staffing that does not show a casual nexus between staffing and a

plaintiff’s injuries is not probative to the question of liability. Estate of Finley v. Beverly

Health & Rehab. Servs., 933 So. 2d 1026 (Miss. Ct. App. 2006). However, in Finley,

summary judgment was appropriate in part because none of the nursing assistants “could

recall any specific instance where [the resident] received substandard care as a result of

                                              15
shortages in staffing or lack of supplies.” Finley, 933 So. 2d at 1036. In the present case,

several assistants testified that they either provided or saw the effects of substandard care

on Edwards. Such testimony is therefore probative under Mississippi Rule of Evidence

401.

       B.     Testimony Regarding Wage Rates and Allegations                    of Alcohol
              Consumption in the Workplace

¶30.   Mariner argues that testimony from nursing assistants that their wages were

insufficient was inadmissible.     They also contend that testimony from one nursing

assistant that she once smelled alcohol on the breath of the director of nursing at the

workplace was inadmissible.       However, Mariner failed to object to either line of

testimony when it was introduced. Failure to make a contemporaneous objection at trial

constitutes a waiver of any error subsequently assigned. M.R.E. 103(a)(1); Moore v.

State, 799 So. 2d 89, 92 (Miss. 2001).

       C.     Admission of the Family Journal

¶31.   Edwards’s family kept a journal at the nursing home in which they would record

their observations, thoughts, and feelings about Edwards and his care. 3 Staff members

were aware of and occasionally wrote in the journal.         Plaintiff’s counsel repeatedly

attempted to introduce the journal into evidence during their case-in-chief. The trial court

allowed Edwards’s estate to use the journal to refresh family members’ recollections, but

reserved ruling on its admissibility. At the end of Mariner’s defense, the trial court found




       3
       The journal was comprised of multiple notebooks which Edwards’s estate
characterized as “family journals” or “journal,” and Mariner characterized as a “diary.”

                                             16
that the journal was admissible under Mississippi Rule of Evidence 801(d)(1) to rebut the

inference of recent fabrication and also under Rule 803 as an exception to hearsay. The

trial judge also found the journal was more probative than prejudicial under Rule 403.

The trial court did not specify under which of the hearsay exceptions to Rule 803 the

journal fell. Edwards’s estate argues that, if the journal is not admissible under Rule

801(d)(1) as a prior consistent statement, it is admissible under Rule 803(1) as a

collection of present-sense impressions.

¶32.   Under Rule 801(d)(1), a prior consistent statement will not be deemed hearsay so

long as (1) the witness testifies at trial and is subject to cross-examination concerning the

statement, and (2) the statement is offered to rebut an express or implied charge of recent

fabrication or improper influence or motive. M.R.E. 801(d)(1). The availability of the

witness is therefore a prerequisite for the introduction of a prior consistent statement. The

Edwards’s family journal contains a number of entries by Edwards’s sister Shirley

Powell, who was deceased by the time of trial. Those portions of the journal could not

have been introduced to rebut an inference of recent fabrication because there was no

testimony at trial to rebut. Because the trial court did not distinguish between statements

made by testifying family members and non-testifying family members, it was error to

find that journal entries made by non-testifying family members were not hearsay under

Rule 801.

¶33.   The trial court also found the journal admissible under the present-sense

impression exception to the hearsay rule. See M.R.E. 803(1). Exceptions to the hearsay

rule, unlike statements which are not hearsay under Rule 801, are exempt from the


                                             17
availability rule. Present-sense impressions are exempted from the rule against hearsay

because the contemporaneousness of the occurrence of the event and the statement render

it unlikely that the declarant made a deliberate or conscious misrepresentation. M.R.E.

803(1) cmt. 1.

¶34.     To be admissible as a present-sense impression, a given statement must meet three

requirements: First, the statement must be made while the event or condition is being

perceived by the declarant or “immediately thereafter”; second, the declarant must

“perceive” the event or condition; and finally, the statement must describe or explain the

event or condition. M.R.E. 803(1); see also Peterson v. State, 518 So. 2d 632, 640 (Miss.

1987).     A crucial element of the reliability of a present-sense impression is its

spontaneity. The determination of spontaneity “is a question for the trial judge whose

action in admitting the statement should not be held to be error unless this Court would be

justified in concluding that under all and any reasonable interpretation of the facts the

explanation could not have been spontaneous.” Evans v. State, 547 So. 2d 38, 41 (Miss.

1989) (quoting Harris v. State, 394 So. 2d 96, 98 (Miss. 1981)).

¶35.     Given the strong deference owed to the trial court, we do not find that admission of

the journal constituted reversible error. Most of the journal entries indicate the date and

time of the entry so that the trial judge could reasonably have interpreted such entries as

being spontaneous. However, we note that Edward’s estate presented no evidence and

the trial judge conducted no inquiry to verify that each entry in the journal was

contemporaneous with family members’ observations of Edwards. While such an inquiry

may be burdensome, “spontaneity” is required for the admissibility of any evidence under

                                              18
the present-sense impression to the hearsay rule and, as a general practice, should be more

thoroughly inquired upon in the future. See M.R.E. 803(1); see also Peterson v. State,

518 So. 2d 632, 640 (Miss. 1987). Nevertheless, in this case, we find support that the

journal entries were, as a whole, contemporaneous and that the trial court did not commit

reversible error in admitting the journal.

       D.     Exclusion of Labor-Hour Reports

¶36.   During discovery, Edwards’s estate requested all daily time sheets that

documented the day-to-day staffing levels at Greenwood Health and filed a motion to

compel production after the daily time sheets were not produced. Mariner maintained

that the daily time sheets had not been preserved, but provided weekly summaries of

staffing levels that had been produced in the normal course of business. Two days before

trial, Mariner delivered more than 10,000 pages of records to defense counsel, including

the daily time sheets in question. Defense counsel maintained that the failure to timely

produce the time sheets was an inadvertent error. Edwards’s estate moved to exclude the

weekly labor-hour summaries, arguing that there was not enough time to verify their

accuracy against the daily time sheets. The trial judge considered the admissibility of the

labor-hour reports on the second day of trial. He questioned whether a continuance could

remedy the discovery violation, but ultimately found that the failure to produce the daily

time sheets materially prejudiced Edwards’s estate, and he therefore excluded them. He

further determined that the labor-hour reports had to be excluded because they could not

be verified against the daily time sheets.




                                             19
¶37.   The appropriateness of discovery sanctions, like other evidentiary rulings, rests

within the sound discretion of the trial court, and will be reversed only if that discretion is

abused. M & M Pipe & Pressure Vessel Fabricators, Inc. v. Roberts, 531 So. 2d 615,

620 (Miss. 1988).      We have articulated the procedure for addressing a discovery

violation:

       Under our rules of civil procedure, failure to make or cooperate in
       discovery should first be resolved by making a motion in the proper court
       requesting an order compelling such discovery. The remedy for failing to
       comply with the discovery requests when the trial court grants an order to
       compel falls under M.R.C.P. 37(a)(4) in the form of awarding the moving
       party the expenses for such motion. After such an order to compel has been
       granted under M.R.C.P. 37(a)(2), and the party ordered to answer fails to
       respond, then the remedy may be sanctions in accordance with M.R.C.P.
       37(b).

Caracci v. Int'l Paper Co., 699 So. 2d 546, 557 (Miss. 1997) (internal citations omitted).

One possible sanction is issuing an order “prohibiting [the offending party] from

introducing designated matters in evidence.”        M.R.C.P. 37(b)(2)(B).       However, the

exclusion of evidence is a last resort. McCollum v. Franklin, 608 So. 2d 692, 694 (Miss.

1992). “Every reasonable alternative means of assuring the elimination of any prejudice

to the moving party and a proper sanction against the offending party should be explored

before ordering exclusion.” Id.

¶38.   The exclusion of the labor-hour reports was well within the discretion of the trial

court. The trial judge considered whether a continuance to review the daily time sheets

would cure the prejudice to Edwards’s estate, determined that a continuance would push

the trial back almost a year, and ruled that the only means of preventing prejudice was to

exclude the time sheets.     The labor-hour reports were compiled from the daily time

                                              20
sheets, but provided only averages of the work hours provided to residents each week,

and did not preclude the possibility that the nursing home was understaffed on a given

day. The trial judge therefore ruled that the admission of the labor-hour reports was

inappropriate once the daily time sheets had been excluded.        Mariner’s reliance on

Ferguson v. Snell, 905 So. 2d 516 (Miss. 2004), is misplaced. The summary reports in

Ferguson were created by a computer automatically generating information. Id at 520.

In that case, it was unnecessary to call as witnesses the individuals who input the

information into the computer system, in part because there was no real question whether

the information produced differed from the information entered into the system. Id. In

the present case, by contrast, there was significant contention whether the labor-hour

reports accurately depicted the level of care at Greenwood Health, since the reports

presented averages that did not preclude short-staffing on a given day.        Given the

importance of the issue of staffing at trial, and in light of the seriousness of Mariner’s

discovery violation to the case, the trial court did not err in excluding the labor-hour

reports from evidence.

       E.    Partial Exclusion of Testimony of Dr. Wood Hiatt

¶39.   Edwards’s estate proffered Dr. Wood Hiatt, a licensed doctor and psychiatrist, as

an expert on the effects Edwards’s profound handicaps had on his life and the limitations

those handicaps would place on a caregiver’s ability to provide treatment to him. Mariner

objected to Hiatt’s designation as an expert in general medicine, arguing that he had not

practiced general medicine in thirty-four years and did not possess the requisite

knowledge about Edwards’s treatment options.       After allowing both sides to explore

                                           21
Hiatt’s qualifications, the trial court ruled that Hiatt was qualified to offer opinions about

Edwards’s retardation, but could not testify to matters of general medicine.

¶40.     The decision whether an expert is qualified rests in the sound discretion of the trial

court. Smith v. State, 530 So. 2d 155, 162 (Miss. 1988). Rule 702 of the Mississippi

Rules of Evidence states that, “if scientific, technical, or other specialized knowledge will

assist the trier of fact to understand the evidence or to determine a fact in issue, a witness

qualified as an expert by knowledge, skill, experience, training, or education, may testify

thereto in the form of an opinion or otherwise.”          The relevant inquiry is therefore

“whether the particular witness really is an expert in the field in which he or she is

tendered.” Stanley, 614 So. 2d at 951; Harris v. Shields, 568 So. 2d 269, 272 (Miss.

1990).

¶41. Edwards’s estate argues that Hiatt has been accepted as an expert in general

medicine in numerous cases, and that we have never before questioned his qualifications.

This contention misses the point. While at least one case held an expert qualified based

on a previous designation by this Court, see Stanley, 614 So. 2d at 951, nothing in Rule

702 would prevent two trial judges in the exercise of seasoned consideration from coming

to two different conclusions regarding the qualification of an expert.            The parties

conducted an extensive voir dire of Hiatt’s qualifications to testify to the treatment that

should have been provided to Edwards in light of his extreme weight loss. The trial judge

ruled that Hiatt was not familiar enough with those treatment options to offer an expert

opinion. There was no error in partially excluding his testimony.

V.       JURY INSTRUCTIONS

                                               22
¶42.   Mariner contends that the trial court erred in granting jury instructions nine, ten,

and nineteen.4 Instructions Nine and Ten defined “abuse” and “neglect” as those terms

are found in the Mississippi Vulnerable Adults Act, Mississippi Code Annotated Section

43-47-5 (Rev. 2002), and stated that the defendant or defendants were liable if the jury

found that either abuse or neglect of Edwards had occurred due to that defendant’s or

defendants’ actions.    Instruction Nineteen listed a number of the federal regulations

related to care that are applicable to long-term care facilities, and stated that any violation

of those regulations could be considered as evidence of negligence.            In considering

whether the grant or refusal of an instruction constitutes reversible error, we read the

instructions actually given as a whole and will not reverse a verdict so long as the

instructions, taken together, fairly announce the law of the case and create no injustice.

Whitten v. Cox, 799 So. 2d 1, 16 (Miss. 2000). Defects in specific instructions do not

require reversal "where all instructions taken as a whole fairly--although not perfectly--

announce the applicable primary rules of law." Peoples Bank & Trust Co. v. Cermack,

658 So. 2d 1352, 1356 (Miss. 1995). However, if those instructions do not fairly or

adequately instruct the jury, we will reverse. Id.

       A.     Use of State and Federal Regulations to Inform the Standard of Care

¶43.   Mariner argues that the jury instructions amounted to the creation of a cause of

action in violation of the well-recognized principle that statutes in derogation of the

common law are strictly construed and do not extend liability beyond that which is clearly



       4
        The precise language of these instructions is, of course, crucial. Because of their
length, they have been appended to this opinion.

                                              23
indicated by their express terms. See Warren v. Glascoe, 880 So. 2d 1034, 1037 (Miss.

2004). However, the instructions did not purport to create a cause of action based on the

so-called Minimum Standards. Instead, the instructions used the definitions of “abuse”

and “neglect” adopted by the Legislature to help establish the standard of care for a

nursing home.

¶44.   Edwards’s estate argues that the definitions of abuse and neglect are proper given

this Court’s principle that violations of statutes can be introduced as evidence of

negligence. See, e.g., Accu-Fab & Constr., Inc. v. Ladner, 778 So. 2d 766, 771 (Miss.

2001), (use of OSHA regulations was not error where they were admitted not to show

negligence but as a measure of reasonable care consistent with industry standards),

overruled on other grounds, Mack Trucks, Inc. v. Tackett, 841 So. 2d 1107 (Miss. 2003);

Snapp v. Harrison, 699 So. 2d 567, 570 (Miss. 1997) (quoting Munford, Inc. v.

Peterson, 368 So. 2d 213, 217 (Miss. 1979) (violation of the Standard Building Code was

evidence of negligence per se, though negligence did not establish causation); Thomas v.

McDonald, 667 So. 2d 594, 596 (Miss. 1995) (violation of statutes governing motor

vehicle operation constituted negligence). However, the Mississippi Vulnerable Adults

Act addresses only willful acts or omissions that injure vulnerable adults. See Miss Code

Ann. § 43-47-19 (Rev. 2004). Edwards’s estate alleges negligent acts and omissions of

the home and its staff were the proximate cause of Edwards’s injuries and death. Because

the Minimum Standards address only willful violations, they cannot be employed to

establish the standard of care applicable in a negligence suit.




                                             24
¶45.   The question remains whether Instructions Nine and Ten, taken together with the

other instructions, accurately instructed the jury regarding the standard of care applicable

in a negligence suit. Though the use of the Minimum Standards might have been error

had they been the only basis for establishing the standard of care, in the present case, the

instructions given did not deviate significantly from the standard established by the expert

testimony of Mariner’s expert witness and the director of nursing at Greenwood Health.

In light of this expert testimony, Instructions Nine and Ten were sufficiently accurate to

withstand scrutiny regarding the standard of care.

¶46.   Mariner also objects to Instruction Nineteen, which stated that violation of federal

regulations may be considered evidence of negligence, as an impermissibly vague and

abstract statement of the law. The cases cited by Mariner are unpersuasive, since they

addressed instructions far more inscrutable than the one at issue here. See Fred's Stores,

Inc. v. M & H Drugs, Inc., 725 So. 2d 902, 917-18 (Miss. 1998) (granting of instructions

regarding, among other things, the abstract elements of a tort, without any connection to

the facts of the case, was error, but ultimately harmless); Freeze v. Taylor, 257 So. 2d

509, 511 (Miss. 1972) (finding that the instruction “[t]he Court instructs the jury for the

defendant that liability rests not upon danger but upon negligence,” was an impermissibly

vague and abstract statement of the law). In the alternative, Mariner argues that this

instruction creates a cause of action where none was intended. Warren, 880 So. 2d at

1037. However, under Moore, federal regulations applicable to nursing homes may be

used to inform the standard of care. Moore, 825 So. 2d at 665. While we find the form

of Instruction Nineteen to be flawed, particularly regarding the citations to federal

                                            25
regulations in the body of the instruction, we do not find this to be reversible error. We

caution against the use of jury instructions reciting regulations as potentially being vague

and abstract as there is no connection relating the facts to the elements of standard of care

and causation. The assignment of error is without merit.

       B.     Whether the Instructions Allowed Consideration of the Separate
              Conduct of Each Defendant.

¶47.   Mariner claims that the trial court committed reversible error by not instructing the

jury to consider the separate defenses and standards of care applicable to the nursing

home, the parent company and its subsidiaries, and the officers of those companies. The

trial court denied Mariner’s proposed instruction D-35, which stated:

       Although there is more than one Defendant in this suit, it does not follow
       from that fact alone that if one is liable all are liable. Each Defendant is
       entitled to a fair and separate consideration of that Defendant’s defense and
       is not to be prejudiced by your decision as to the others. Unless otherwise
       stated, the instructions apply to the case of each Defendant. Decide each
       Defendant’s case separately.

See also Miss. Pract. Model Jury Instr. Civil 1:18, Mississippi Judicial College (West

2007). The trial court held that the proposed instruction was misleading and that Mariner

could argue its point in closing argument.

¶48.   A party is entitled to a jury instruction so long as it concerns a genuine issue of

material fact and there is credible evidence to support the instruction. DeLaughter v.

Lawrence County Hosp., 601 So. 2d 818, 824 (Miss. 1992); see also Copeland v. City of

Jackson, 548 So. 2d 970, 973 (Miss. 1989). However, this Court will not reverse based

on the denial of an instruction unless it is shown that the instructions, taken as a whole, do

not fairly present the applicable law. Whitten, 799 So. 2d at 16.

                                             26
¶49.   We find that the trial court erred in denying Mariner’s proposed instruction on

separate consideration. The statement was neither misleading nor an incorrect statement

of the law, and the issue of which Defendant was liable for what conduct was the pivotal

issue in the case. The negligence alleged by Edwards’s estate was multiple and varied,

extending from the actions of the nursing assistants in an individual facility to the

institutional polices set at the highest levels of the corporation. The standard of care

applicable to the nursing staff and the director of nursing was not the same as that

applicable to corporate officers who set budgetary guidelines for the parent corporation.

Issues of material fact supported by credible evidence justified the instruction.

¶50.   The denial of the proposed instruction, taken together with the ambiguity of

several instructions regarding the separate conduct of each Defendant, failed to

adequately present the law of the case. Instructions Nine and Ten, outlining the standards

of neglect and abuse, were properly granted as correct statements of the law.          Each

instructed the jury that if it found for Edwards’s estate as to neglect or abuse, the verdict

should only be against those Defendants whose neglect or abuse proximately caused

Edwards’s injuries. The trial court did not err in granting these instructions.

¶51.   However, other accepted instructions left the question of separate consideration

opaque.    For example, in outlining the elements of Edwards’s negligence claim,

Instruction Five stated as an element of the tort that “the Defendants should have been

reasonably aware of Charles Edwards’[s] condition.” While such an instruction is proper

as to Greenwood Health, it is not a proper instruction against other defendants such as

National Heritage Realty, which owned the nursing home but presumably had little if


                                             27
anything to do with patients’ medical records, or even Mariner Health Care, which as a

parent corporation, could not reasonably be expected to be aware of the specific medical

needs of one of its patients.

¶52.   In cases involving service providers and their parent corporations, the just

adjudication of claims demands that parties be held responsible for any breaches of the

duties imposed upon them by law. But a plaintiff must carefully establish what duty was

owed by whom and how it was not met, and the trial court must insure that the jury is

equipped to consider distinct claims and to assess liability judiciously. Because that was

not done in this case, the jury’s verdict must be reversed.

VI.    LIABILITY OF ADMINISTRATORS AND LICENSEES

¶53.   Mariner maintains that the trial court erred in granting jury instructions Eleven and

Twenty, which instructed the jury that the two nursing home licensees and the three

nursing home administrators owed a duty of care to the residents of the home. We have

recently ruled that nursing home licensees and administrators owe duties to their

employers, but that they owe no common-law or statutory duty to the residents of the

home. See Howard v. Estate of Harper, 947 So. 2d 854 (Miss. 2006). In light of

Howard v. Harper, the licensees and administrators must be dismissed from the suit.

¶54.   Mariner argues that the improper joinder of the licensees and administrators

requires reversal. However, under Mississippi Code Annotated Section 11-3-37 (Rev.

2002), “one of several appellants shall not be entitled to a judgment of reversal because of

an error in the judgment or decree against another, not affecting his rights in the case.”

(Emphasis added).     Mississippi has a paucity of cases addressing the impact of the

                                             28
dismissal of one or more parties on appeal on the interests of the remaining parties.

However, the misjoinder of the licensees and administrators did not in any way prejudice

Mariner. Though this Court held in Howard that licensees and administrators do not owe

a duty of care to the residents, they do owe a duty to their employer. As such, the parties

could have been called by Edwards’s estate to provide relevant testimony. Furthermore,

the record demonstrates that all of the licensees and administrators did not testify, and

those who did said little that advanced the case against Mariner. While the licensees and

administrators must be dismissed from the suit on remand, no tenable basis exists for

dismissing the complaint against Mariner. The assignment of error is correct as to the

individual administrators and licensees, but is without merit as to Mariner.

VII.   WHETHER IT IS INCUMBENT UPON THIS COURT TO DETERMINE
       THE SCOPE OF BANKRUPTCY STIPULATION AUTHORIZING
       EDWARDS’S SUIT.

¶55.   After Edwards entered Greenwood Health in December 1994, but before Edwards

filed his original complaint on December 7, 2001, and before he died on February 16,

2002, Mariner filed for bankruptcy in the United States Bankruptcy Court for the District

of Delaware (January 18, 2000).       After discussion, Edwards’s counsel and Mariner

entered into a stipulation on March 12, 2002, on behalf of Edwards and a number of other

plaintiffs under which the plaintiffs could bring legal action, either pre-petition or post-

petition, despite the automatic stay imposed on such actions by Section 362 of the

Bankruptcy Code. The bankruptcy court ratified the stipulation in a Confirmation Order

on April 3, 2002.




                                            29
¶56.   The stipulation held that legal action could be brought by “Charles E. Edwards, by

and through Nevonnia Turner as Conservatrix of the Use and Benefit of Charles E.

Edwards.” Edwards amended the complaint on November 4, 2002, to name as the real

party “The Estate of Charles E. Edwards, by and through Nevonnia Turner, as

adminstratrix of the Estate of Charles E. Edwards, for the use and benefit of the estate of

Charles E. Edwards, Deceased, and the wrongful death beneficiaries of Charles E.

Edwards, deceased.” In its Answer and Defenses to the Amended Complaint, Mariner

asserted bankruptcy as a defense, arguing that Edwards’s Estate was not named in the

stipulation and was therefore barred from bringing suit. Mariner also filed a motion in

limine, requesting that the trial court enforce the bankruptcy stipulation. The trial court

denied Mariner’s motion.

¶57.    While the courts of this state have jurisdiction to determine whether a pending

action is stayed by a ruling of the bankruptcy court, we recognize that state courts “should

consider deferring close questions involving the applicability of exceptions to the

automatic stay under 11 U.S.C. § 362(b) to the bankruptcy court.” Overbey v. Murray,

569 So. 2d 303, 308 (Miss. 1990). In the present case, the bankruptcy stipulation was

negotiated in and authorized by the bankruptcy court. Questions regarding the scope of

the stipulation and the possibility of recovery under the plan are ultimately matters more

properly considered by the bankruptcy court.       We therefore decline to interpret the

bankruptcy stipulation and leave this determination to the bankruptcy court.

                                     CONCLUSION




                                            30
¶58.   The trial court erred in declining to investigate Mariner’s allegations of juror

misconduct, in admitting the depositions of corporate officers into evidence, and in

refusing Mariner’s proposed jury instruction on separate liability.        The trial court’s

judgment is therefore reversed, and the case remanded (1) with instructions to dismiss

with prejudice the licensee and administrator defendents J.D. Lee, George D. Morgan, M.

Scott Athans, Angela M. Whittington, Charlie R. Sinclair, Jr., and John M. Merrell, and

(2) for a new trial consistent with this opinion of plaintiff’s claims against Mariner Health

Care, Inc., Grancare, Inc., Evergreen Healthcare, Inc., and National Heritage Realty, Inc.

¶59.   REVERSED AND REMANDED.

     SMITH, C.J., EASLEY, CARLSON, DICKINSON, RANDOLPH AND
LAMAR, JJ., CONCUR. GRAVES, J., DISSENTS WITH SEPARATE WRITTEN
OPINION JOINED BY DIAZ, P.J.


                                        APPENDIX

Jury Instruction No. 9

       As a resident of Greenwood Health & Rehabilitation Center, the Defendants owed

Charles E. Edwards a duty to exercise reasonable care, consistent with his age and

physical condition, to prevent the occurrence of and to protect Mr. Edwards from abuse in

their nursing home. Abuse as used in these instructions means the willful infliction of

physical pain, injury or mental anguish on a vulnerable adult, the unreasonable

confinement of a vulnerable adult, or the willful deprivation by a caretaker of services

which are necessary to maintain the mental and physical health of a vulnerable adult.

Abuse includes, but is not limited to, a single incident.



                                             31
       If you find from a preponderance of the credible evidence that Defendants failed to

exercise reasonable care to prevent the occurrence of or to protect Mr. Edwards from

abuse, as defined in this instruction, and if you further find from a preponderance of the

evidence that as a result of such failure, if any, Mr. Edwards suffered abuse while in the

Defendants’ nursing home, then your verdict should be for the Plaintiff and you should

assess damages proximately caused to Mr. Edwards by such abuse, if any.

Jury Instruction No. 10

       As a resident of Greenwood Health & Rehabilitation Center, the Defendants owed

Charles E. Edwards a duty to exercise reasonable care, consistent with his age and

physical condition, to prevent neglect of Mr. Edwards in their nursing home. Neglect

means the failure of a caretaker to supply a vulnerable adult with the food, clothing,

shelter, health care, supervision or other services which are necessary to maintain his

mental and physical health. Neglect includes, but is not limited to, a single incident. If

you find from a preponderance of the credible evidence that the Defendants, or any of

them, failed to supply Mr. Edwards with the food, clothing, shelter, health care,

supervision or other services that a reasonably prudent person would have provided in

order to maintain Mr. Edwards’ mental and physical health, and that as a result thereof,

Mr. Edwards suffered injury and damage, then, in that event, your verdict should be for

the Plaintiff and you should assess all damages proximately caused to Mr. Edwards by

such neglect against the Defendant or Defendants proven by a preponderance of the

evidence to be responsible for such neglect, if any.

Jury Instruction No. 19

                                             32
       At all times material to this case, there were in force in the State of Mississippi

regulations providing requirements for long term care facilities, which provided:

       a.The facility must care for its residents in a manner and in an environment that

promotes maintenance or enhancement of each resident’s quality of life. The facility

must promote care for residents in a manner and in an environment that maintains or

enhances each resident’s dignity and respect in full recognition of his or her individuality.

42 C.F.R. § 483.15(a).

       b.Each resident must receive and the facility must provide the necessary care and

services to attain or maintain the highest practicable physical, mental and psychological

well-being, in accordance with the comprehensive assessment and plain of care.            42

C.F.R. § 483.25; Miss. Min. Stds. § 503.2.

       c.Assessments must be conducted promptly after a significant change in the

resident’s physical or mental condition. 42 C.F.R. § 483.20(b)(2)(ii).

                     “Significant change” means a major decline or improvement in the
                     resident’s status that will not normally resolve itself without further
                     intervention by staff or by implementing standard disease-related
                     clinical interventions, that has an impact on more than one area of
                     the resident’s health status, and requires interdisciplinary review or
                     revision of the care plan, or both.

       d.Based on the comprehensive assessment of a resident, the facility must ensure

that a resident who is unable to carry out activities of daily living receives the necessary

services to maintain good nutrition, grooming, and personal and oral hygiene. 42 C.F.R.

§ 483.25(a)(3); Miss. Min. Stds. § 503.3.




                                             33
       e.Based on the comprehensive assessment of a resident, the facility must ensure

that a resident having pressure sores receives necessary treatment and services to promote

healing, prevent infection and prevent new sores from developing and that residents

without pressure sores do not develop pressure sores unless the resident’s clinical

condition indicates that they were unavoidable. 42 C.F.R. § 483.25(e)(2); Miss. Min.

Stds. § 503.3.

       f.Based on a resident’s comprehensive assessment, the facility must ensure that a

resident maintains acceptable parameters of nutritional status, such as body weight, and

protein levels, unless the resident’s clinical condition demonstrates that this is not

possible. 42 C.F.R. § 483.25(i)(1); Miss. Min. Stds. § 503.9.

       g.The facility must provide each resident with sufficient fluid intake to maintain

proper hydration and health. 42 C.F.R. § 483.25(j); Miss. Min. Stds. § 503.10.

       h.The facility must ensure that a resident with a limited range of motion receives

appropriate treatment and services to increase range of motion and/or to prevent further

decrease in range of motion. 42 C.F.R. § 483.25(e); Miss. Min. Stds. § 503.5.

       i.The facility must ensure that a resident who is fed by a feeding tube receives the

appropriate treatment and services to prevent aspiration pneumonia, diarrhea, vomiting

dehydration, and metabolic abnormalities and to restore, if possible, normal eating skills.

42 C.F.R. § 483.25(g)(2); Miss. Min. Stds. § 503.7.

       j.Based on a resident’s comprehensive assessment, the facility must ensure that a

resident with special needs, including the need for parenteral or enteral nutrition fluids,

receives proper treatment and care. 42 C.F.R. § 483.25(k); Miss. Min. Stds. § 503.11.


                                            34
         k.The facility must have sufficient nursing staff to provide nursing and related

services to attain or maintain the highest practicable physical, mental, and psychological

well-being of each resident, as determined by resident assessments and individual plans

or care. 42 C.F.R. § 483.30; Miss. Min. Stds. § 201.1.

         l.The facility must maintain clinical records on each resident in accordance with

accepted professional standards and practices that are complete and accurately

documented. 42 C.F.R. § 483.75(l)(1)(i)(ii); Miss. Min. Stds. § 507.1.

         m.The facility must be administered in a manner that enables it to use its resources

effectively and efficiently to attain or maintain the highest practicable physical, mental,

and psychological well-being of each resident. 42 C.F.R. § 483.75; Miss. Min. Stds. §

403.1.

A violation of one or more of these regulations, although not necessarily negligence, may

be considered by you as evidence of negligence along with all of the other facts and

circumstances in the case.




         GRAVES, JUSTICE, DISSENTING:

¶60.     Because I would affirm the trial court on all counts, I respectfully dissent.

¶61.     The majority is correct that Juror “B” did allege in her affidavit that Juror “W” had

made up her mind on the first day of trial, that she knew a resident at Greenwood Health

who received poor care and that she knew of others who had received poor care. The

majority also correctly states that the affidavit did not specify whether the statements

regarding poor care were made during deliberations. The majority finds that the affidavit

                                               35
implicitly includes Juror “W” among those who made certain comments. However, the

affidavit clearly does not support such a finding. The affidavit states:

       In addition, juror comments during the trial and deliberations included
       statements that the white people have been taking the black people’s money
       and black people have figured out that lawsuits are the way to get the
       money back. It was also stated that white people were now trying to put a
       cap on lawsuit awards. It was argued that the jurors needed to stick
       together to get the money back to the black people and that money should
       be given in this case because the plaintiff was black.

¶62.   This paragraph fails to allege or even suggest that Juror “W” made any of these

statements.   The very next paragraph of the affidavit further establishes that this

allegation does not pertain to Juror “W” and instead can be attributed to “others.”

¶63.   Rule 606(b) of the Mississippi Rules of Evidence (M.R.E.), states:

       Upon an inquiry into the validity of a verdict or indictment, a juror may not
       testify as to any matter or statement occurring during the course of the
       jury’s deliberations or to the effect of anything upon his or any other juror’s
       mind or emotions as influencing him to assent to or dissent from the verdict
       or indictment or concerning his mental processes in connection therewith,
       except that a juror may testify on the question whether extraneous
       prejudicial information was improperly brought to the jury’s attention or
       whether any outside influence was improperly brought to bear upon any
       juror. Nor may his affidavit or evidence of any statement by him
       concerning a matter about which he would be precluded from testifying be
       received for these purposes.

M.R.E. 606(b).

¶64.   Pursuant to M.R.E. 606(b), the trial court properly found that the juror’s affidavit

was not competent evidence because “it attempts to impeach a verdict by testifying about

influences affecting deliberations and no adequate showing has been made of external

influences nor extra-record facts as defined previously.”




                                             36
¶65.   The majority concedes that the affidavit contained information regarding the

mental impressions of both Juror “B” and Juror “W, ” but then finds that Juror “W” failed

to respond to questions during voir dire.        However, I disagree.     The majority is

improperly relying solely on allegations contained in the affidavit, which is not competent

evidence, as support for the finding that Juror “W” failed to respond to questions.

¶66.   The majority is correct that the standard for review for juror misconduct in failing

to respond to questions during voir dire is set out in Odom v. State, 355 So. 2d 1381

(Miss. 1978). Odom states:

       Therefore, we hold that where, as here, a prospective juror in a criminal
       case fails to respond to a relevant, direct, and unambiguous question
       presented by defense counsel on voir dire, although having knowledge of
       the information sought to be elicited, the trial court should, upon motion for
       a new trial, determine whether the question propounded to the juror was (1)
       relevant to the voir dire examination; (2) whether it was unambiguous; and
       (3) whether the juror had substantial knowledge of the information sought
       to be elicited.”

Id. at 1383.

¶67.   The majority finds that Juror “W” failed to respond to the following question by

plaintiff’s counsel:

               Q.     Each of you understand that we are not here for sympathy,
       that we are here for justice, each of you understand that? Do each of you
       here think you could recognize appeal to prejudice?
               And as you sit here today, is there anybody who has any reason to
       feel that there is any reason that we haven’t touched on, that you feel that
       we ought to know that would adversely impact your ability to serve as a
       juror in this case, that we haven’t discussed thus far?

¶68.   This question is “in the nature of ‘catch-all’ questions, designed to elicit any

information from jurors that would cause them not to be impartial.” Tolbert v. State, 511



                                            37
So. 2d 1368, 1377-78 (Miss. 1987). This Court has found general, catch-all questions to

be necessarily ambiguous. Id. See also Buckley v. State, 772, So. 2d 1059, 1064 (Miss.

2000). This question fails the second prong of Odom, as cited herein.

¶69.   Additionally, there is no evidence that Juror “W” had “substantial knowledge of

the information sought to be elicited” under prong three when the question is unclear as to

what information is even being sought. Id. This Court has acknowledged the difficulty

in proving prong three, noting in Odom, that, “[w]e do not suggest how this may be

proved as that question was not raised or briefed. However, the general rule is that a juror

may not testify to impeach a verdict rendered by them.” Id. at n. 1. Further, even if Juror

“W” had “substantial knowledge of the information which through proper questions the

attorneys were entitled to know,” Mariner would have to establish that Juror “W” would

have been subject to a defense challenge for cause. Tolbert 511 So. 2d at 1378. Mariner

is unable to do that. No question was asked during voir dire that went to the specific

claims now raised in the affidavit. Moreover, even if a specific question had been asked,

there is no way to predict how Juror “W” might have answered that question or any

follow-up questions.

¶70.   The majority also finds that Juror “W” failed to respond to a question as to

whether “just the mention of a nursing home invoke [sic] negative feelings, negative

experience?” Again, this question is ambiguous. Further, there is absolutely no evidence

contained in the affidavit or anywhere else in the record establishing that the mere

“mention of a nursing home” caused Juror “W” to have negative feelings. Therefore, the

majority’s finding as to this issue likewise fails both prongs two and three of Odom.

                                            38
¶71.   There is absolutely no evidence before this Court to suggest that Juror “W”

“withheld material information during voir dire which would have resulted in her being

challenged” and “then relayed that exact disqualifying information to the other members

of the jury during deliberations” pursuant to T.K. Stanley, Inc. v. Cason, 614 So. 2d 942,

950 (Miss. 1992).

¶72.   Moreover, the Odom test has since been expanded to include a fourth prong

requiring that “prejudice . . . in selecting the jury could reasonably be inferred from the

juror’s failure to respond.” Payton v. State, 897 So. 2d 921, 954 (Miss. 2003) (citing

Chase v. State, 645 So. 2d 829, 847 (Miss. 1994); Myers v. State, 565 So. 2d 554, 558

(Miss. 1990); and Odom). Assuming that the first three elements had been met, Mariner

has not shown that it was prejudiced by the juror’s failure to respond. See Buckley, 772

So. 2d at 1065 (“Whether prejudice can be inferred in the jury selection process due to

[juror’s] silence is an inquiry this Court makes only after the Odom factors have been

answered in the affirmative.”) Additionally, Mariner would not be able to show prejudice

with regard to Juror “W” because the verdict was 10-2 for compensatory damages.5

¶73.   In Payton, this Court found:

       This alleged information came from the jurors’ own knowledge of the facts
       and witnesses. It in no way relates to extraneous information supplied from
       outside the jury room. The only allegations before the trial court were that
       the jurors themselves discussed matters outside the evidence at trial. There
       was no evidence that someone outside the twelve jurors did something to
       influence their deliberations.


       5
       Only nine or more jurors are necessary for a civil verdict. Miss. Code Ann. §13-5-93
(Rev. 2002).


                                            39
Id. at 954.

¶74.   In the case sub judice, the allegations pertain to the juror’s own knowledge and not

to any extraneous information from someone outside the twelve jurors. This Court has

also held that “[i]n the absence of a threshold showing of external influences, an inquiry

into the jury verdict is not required.” Id. (citing Gladney v. Clarksdale Beverage Co.,

625 So. 2d 407, 419 (Miss. 1993)).          Clearly, an inquiry into the jury verdict is not

required. For these reasons, I would find that the trial court properly denied the motion to

contact jurors.

¶75.   With regard to the third issue, the majority finds that the deposition testimony of

two corporate officers was not probative to the issues of duty, breach, causation or injury.

The majority further finds that the admission of this testimony prejudiced Mariner and

constituted reversible error. I disagree.

¶76.   Boyd Gentry, senior vice president and treasurer of Mariner, testified, not only

about cost and cash, but also about care and census.6 Gentry said:

              The four Cs are really meant to be a way of thinking about our
       business as a whole. So while my direct activities may be tied to cash or
       cost, in us thinking about our business, the senior management team is
       extremely focused on care and census.
              And we really – I guess we don’t often have conversations about the
       one without having conversations about the other. It’s always kind of the
       four Cs.

¶77.   Roy Dumas, regional vice president of operations for the south district of Mariner,

testified that he was the direct supervisor of the administrators of various facilities under



       6
         Gentry defined census as: “Our patients and our residents.” Gentry further said that
“it relates to them as people, and they are our business.”

                                               40
the Mariner umbrella. Dumas further offered testimony as to the four Cs and as to the

various monthly reports he received. These reports included, but were not limited to,

reports detailing the number of falls, injuries, whether staff was following medical

protocol, how many residents had lost weight, and the total number of pressure sores.

¶78.   The majority states, “Plaintiff’s counsel relied on this testimony and the testimony

of Mariner’s senior vice president and treasurer to portray Mariner as a company focused

on financial success rather than competent care.” The majority is apparently referring to

comments made during the opening statement and closing argument, which are not

evidence.

¶79.   The majority finds that “the testimony was not probative to the issues of duty,

breach, causation, or injury.” The majority’s finding means that testimony from the vice

president of operations about the care and treatment of patients would be deemed

irrelevant in a trial about the care and treatment of a patient. The majority’s finding is

clearly erroneous. Therefore, I would find that the evidence was properly introduced.

¶80.   In issue V(B), the majority finds that the trial court committed reversible error in

not instructing the jury to consider the separate conduct of each defendant. I disagree.

Mariner takes issue with the denial of a single instruction.           However, the other

instructions, taken as a whole, fairly present the applicable law. See Whitten v. Cox, 799

So. 2d 1, 16 (Miss. 2000). Therefore, I would find that this issue is without merit.

¶81.   Accordingly, for the reasons stated herein, I respectfully dissent.

       DIAZ, P.J., JOINS THIS OPINION.




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