A Leflore County Circuit judge has overturned a Nov. 25 verdict against Pemberton Manor Nursing Home because a juror failed to properly disclose that his mother once lived there.
The $7 million award to plaintiff Elnora Johnson, a Pemberton Manor resident, was the largest in the county's history. Her family brought the suit against the nursing home, claiming malpractice and neglect by the nursing home's management and administrators.
Juror Samuel Neely testified in a hearing Tuesday that he waved his hand during jury selection in November when attorneys asked who had visited Pemberton Manor.
Neely, who was the jury's foreman, also testified that he thought attorneys knew during the trial that his mother had lived at the nursing home.
However, he told the court Tuesday he did not realize other inquiries that might have disqualified him as a juror were directed at him.
"Juror Neely, according to the transcript, failed to respond," Circuit Judge Betty Sanders said during her ruling for a new trial. "By Juror Neely's silence - or if he raised his hand - somehow he escaped any follow-up questions that may have been appropriate in this process."
After the trial, the defense team filed a motion for a mistrial, claiming it was not made fully aware that Neely had connections with the nursing home. His mother lived there for two years until her death in 1996.
The information came in post-trial interviews with two Pemberton Manor employees and Neely's son, according to defense attorneys.
At Tuesday's hearing, attorneys from both sides cross-examined Neely and presented oral arguments to Sanders.
Neely testified that he and other potential jurors waved their hands to indicate they had visited Pemberton Manor.
He said he also told attorneys during the jury selection that his mother once lived at the nursing home and that he was satisfied with the care she received, he said.
Neely said he thought his responses would be enough to excuse him from serving as a juror. "It surprised me when I was selected for the jury," he said.
But neither a verbal response nor a hand gesture from Neely was included in the transcript.
Defense attorney Willie Perkins said that discrepancy constitutes evidence of juror misconduct.
"We think the transcript contradicts everything this juror said today under oath," Perkins said. "It's just kind of strange that his hand being raised wasn't seen by anybody, that his hand being raised wasn't included on the record."
Attorneys from the Hattiesburg firm Wilkes & McHugh, who represent Johnson, asserted that gestures aren't always included in court transcripts.
"There's no record in the transcript that Mr. Neely did not raise his hand in response to this," said Rae Turner.
Johnson's attorneys also argued that further questioning by the defense would not have elicited cause for Neely's removal from the jury pool. The hand gesture and any statements Mr. Neely made were not followed up, said Ben Lazzara, another plaintiff's attorney.
"No one followed any further," Lazzara said. "Had they followed up, he would have given the testimony that he had no problem with the care."
Several other questions were directed toward the entire jury pool, according to the transcript. Neely, though, testified that he didn't respond to some of them because he didn't know they were intended for him.
"The juror admitted he did not respond to other questions propounded because he did not believe they were directed of him," Sanders said.
