Lori Semlies (Partner-White Plains, NY) and Judy Selmeci (Partner-New York, NY) successfully resolved a complex case in the Supreme Court of the State of New York, Ulster County, on behalf of Wilson Elser’s nursing home client in the first case against a nursing home in New York State related to Covid to go to verdict, and without the availability of the state immunity statute. The plaintiff asserted causes of action for negligence, gross negligence, violation of New York State Public Health Law, and wrongful death.
After precluding plaintiff’s only evidence on how the decedent may have contracted Covid based upon hearsay, the court directed a verdict for the defendant on the claim of failing to prevent the transmission of Covid. The remainder of the case intended to be advanced by the plaintiff was that our client was negligent in failing to perform more blood tests to identify the patient’s deteriorating condition before it became too severe, ultimately leading to his death. However, the plaintiff’s expert proved less committed to this negligence theory than plaintiff’s counsel.
Lori's rapid-fire questioning during cross-examination elicited key concessions from the plaintiff's expert, substantially undermining the plaintiff's case. The expert acknowledged that there was no standard of care, even by January 2021, that required additional blood tests for a Covid-positive patient and that the decision to order such testing rested with the treating physicians' clinical judgment. The expert also made a critical concession on causation.
Despite this testimony, the trial court “reserved decision” on Wilson Elser’s motion for a directed verdict and sent the case to the jury. The jury returned a verdict for the plaintiff, contrary to the expectations of both the parties and the court.
Lori then enlisted New York office partner and appellate specialist Judy Selmeci to prepare the post-trial motion. On the motion, when presented squarely with the deficiencies in the plaintiff's proof, the trial court concluded that our nursing home client was entitled to a directed verdict. The court set aside the jury's verdict, dismissed the action based on the plaintiff's failure to meet the burden of proof at trial, and entered judgment for the defendants.