On July 30, 2024, Andrew T. Sheeley, along with local counsel, Howard Hayden, secured a unanimous defense verdict in a COVID-19 wrongful death trial on behalf of a skilled nursing and rehabilitation facility client following a 2 ½ week jury trial in Circuit Court, Sumner County, Tennessee, before The Hon. Joe Thompson.

Plaintiff claimed the nursing home management failed to protect an 89-year-old resident of the 207-bed nursing home from contracting the SARS-CoV-2 virus in the early part of March 2020, resulting in her death from COVID-19.  More specifically, plaintiff, via the testimony of 5 experts of varying specialties, claimed the nursing home should have (1) properly executed a symptoms-based screening process for visitors and staff as directed by CMS and CDC; (2) implemented universal masking of staff as early as March 6, 2020, based on the multi-facility management’s implementation of universal masking rolled out at that time in its NY facilities, and despite the absence of CMS/CDC directing staff masking mandates issued later in April 2020; and that the nursing home should have suspended admissions and re-admissions on March 5, 2020 when the Gov. announced the first case of COVID-19 in the State.

This case was the first of 25 lawsuits against the same nursing home client to go to trial.  This nursing home was the subject of harsh media coverage in 2020 following an order from State government to evacuate all residents from the nursing home and transfer them to various local hospitals, so the facility could be “sanitized.”  During a time when rapid testing was unavailable to providers, the State Department of Health arranged to test all residents and staff (regardless of symptoms) revealing 161 positive results.  At least 20 residents died.

The defense called to testify many of the brave caregivers and management to relive before the jury the incredible challenges faced in implementing responses to the rapidly changing guidelines being spit out by CMS/CDC almost daily.  Moreover, the defense called to testify individual caregivers who directly confronted and contradicted a former nurse and self-proclaimed “whistleblower”, who testified she observed these individuals as having close contact with the resident at a time when, as alleged by plaintiff, each knew they were COVID +.  The defense successfully attacked the credibility of the whistleblower through aggressive cross examination.

The defense wrapped up its case by calling to testify a Medical Director of a local skilled nursing facility operator to opine as the ever “standard of care” in the local community in early March 2020, and that universal masking of all staff was not mandated or recognized as a tool to prevent transmission of SARS-CoV-2 at that time.

Perhaps the most compelling testimony was offered by a well credentialed Infectious Disease Epidemiologist from Emory University in Atlanta and former member of the CDC Epidemic Intelligence Service, where he investigated outbreaks in hospitals and nursing homes for many years.  This defense expert limited his testimony as to causation and explained that based on several reputable and peer reviewed medical literature published as the pandemic progressed, the concept of symptoms-based screening was found to be a flawed strategy for healthcare institutions and ineffective in preventing the spread of COVID 19.  He educated the jury that although symptoms-based screening can be effective in identifying staff and visitors with potential symptoms of COVID-19, as was understood at the time, it was entirely useless identifying those individuals who were infected with the virus but were asymptomatic and therefore permitted to enter the nursing home.  In response to the claim that universal masking of healthcare providers would have prevented importation of the virus into this nursing home, this defense expert opined that it may have decreased the size and duration of the outbreak but that surgical masks reduce the risk of transmission of COVID-19 by 40% where there is a masked source and unmasked recipient.  He opined that the risk of transmission would increase to 90% if both source and recipient were masked.  The expert concluded by explaining the real game changer in reducing the size and duration of outbreaks came once universal daily and weekly testing became available.  Once the vaccine was rolled out the size and duration of outbreaks in nursing home dropped to acceptable levels.

To hear a jury exonerate the dedicated caregivers of this nursing home was very rewarding.