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Estate of Perry v. Mariner Health Care, Inc., 927 So. 2d 762 (Miss. Ct. App. 2006)

The nursing home filed a Chapter 11 bankruptcy petition in January 2000. Plaintiff resided in the nursing home from November 1999 through February 2000. In November 2001, Plaintiff filed suit, followed by an individual defendant’s motion to dismiss. In June 2003, the trial court granted the motion to dismiss, but gave Plaintiff 30 days to amend her complaint to allege with specificity any allegations of individual wrongdoing. Plaintiff did not file an amended complaint. In 2002, an agreed order was entered in the bankruptcy court confirming the reorganization plan, including a stipulation that certain claims, including one styled “The Estate of Vader I. Perry by and through Betty Rayburn, Administrator” were exempt from discharge. Prior to trial, Defendants moved in limine to bar Plaintiff from pursuing the wrongful death claim because the wrongful death beneficiaries were not mentioned in the bankruptcy stipulation and their claims were discharged; the trial court granted the motion. On December 18, 2003, the case was tried and the jury returned a verdict for the Defendant. The trial court subsequently dismissed Rayburn’s wrongful death claim with prejudice. On appeal, there was no error in dismissing the individual defendant since Plaintiff failed to file an amended complaint. The court rejected a challenge regarding the negligence jury instruction. There was no error in dismissing Rayburn’s wrongful death claim; other stipulated exceptions to discharge included wrongful death claims, but this one did not. There was no error in refusing to give a spoliation instruction to the jury since Plaintiff failed to prove bad faith, misconduct or fraudulent design. There was no error in admitting evidence of the resident’s alcohol abuse since it was relevant to her treatment at the nursing home and because Rayburn testified about resident’s past medical history on direct examination and about the alcohol abuse on cross examination without further objection.


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