We received a defense verdict in a contentious long-term care case that included a unique spoliation issue, allegations of cover-up regarding the cause of death and a “no show” plaintiff. A longtime nursing home resident, who was suffering from “end-stage dementia,” died nine days after suffering head trauma following a fall. The plaintiff was the resident’s son who was not his mother’s guardian. The plaintiff contacted a lawyer who delivered the body across Pennsylvania to a forensic pathologist for a private autopsy. No notice was provided to the nursing home administration of the impending autopsy, despite the fact that the lawyer had sued the long-term facility several times in the past. The corpse was cremated shortly after the autopsy without an opportunity for the defense to examine the body. The defense did not learn about the private autopsy until years later, when the report was provided in discovery. A motion for sanctions for spoliation was filed by the defense, which was followed by depositions of the funeral home staff and a hearing involving the forensic pathologist and the attending physician. Although the spoliation motion was denied, the court held that the defense could question the forensic pathologist on the cremation, destroyed specimens and failure to produce the autopsy photographs at trial. On the eve of trial, the judge proctored an agreement between the parties to arbitrate the case “on expert reports only.” At arbitration, plaintiff’s counsel continued to pursue a conspiracy theory about “the true cause of death” along with standard negligence criticisms about fall prevention. The plaintiff was cross-examined on a prior crimen falsi conviction and an Orphans’ Court petition initiated by the local Area Agency on Aging, wherein the deceased resident complained that she was afraid of her son, which was relevant to his “loss of society and companionship” claim. Not surprisingly, the plaintiff denied every allegation of the Orphans’ Court petition, which detracted his appearance and credibility.
