Motion for Judgment Notwithstanding the Verdict

MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR IN THE ALTERNATIVE - FOR A NEW TRIAL

COMES NOW the Plaintiff, , by and through the undersigned counsel, and moves the Court to set aside the verdict of the jury which was rendered on the day of and the judgment which has been entered thereon on the day of and to enter judgment for the Plaintiff against the Defendant, . In the alternative, should this Motion be overruled, Plaintiff moves the Court to grant and order a new trial in and of this action, and as grounds therefore, Plaintiff assigns the following:

REQUEST FOR ADMISSIONS

1. On Plaintiff filed Requests for Admission, a copy of which are attached hereto as exhibit "A". Request for Admission No. was admitted by default on Plaintiff voluntarily withdrew default of Defendant and the Defendant affirmatively filed an admission on admitting that on extracted five of 's teeth.

2. Request for Admission No. was admitted by default on Plaintiff voluntarily withdrew default of Defendant and the Defendant affirmatively filed an admission on By affirmative admission admitted that he/she prescribed antibiotics for following the extraction procedure on

3. The Plaintiff sought and the Defendant made Rule 36 admissions to other facts about the case, which are contained on exhibits "A" and exhibit "B" attached hereto.

4. Plaintiff retained Dean of the School of Dentistry at the in Mississippi. Counsel for Plaintiff supplied with the medical records of the case, including the records of as well as the Request for Admission answered by in this case.

5. Based upon the records and Requests for Admission, was of the professional opinion that breached the standard of care of a minimally competent dentist based on the following facts:

a) The testimony of that his/her tooth was abscessed and infected is corroborated by the fact that prescribed antibiotics on ;

b) From until , the antibiotics would not have had sufficient time to cure an abscessed tooth or infection;

c) Based upon the admissions of that the teeth were extracted on it was below the standard of care to pull the infected tooth on

6. expressed other opinions concerning 's treatment being below the minimum standard of care, including failure to properly obtain a medical history and failure to maintain competent records. However, the Requests for Admission supplied by were material to the Plaintiff's claim in this action, wherein Paragraph 4(b) of the Complaint, the Plaintiff sets out the Defendant's negligence "in extracting a tooth without properly determining the extent of an infection" resulting in liver abscess and endocarditis.

7. At the beginning of the trial, the Plaintiff called the Defendant, adversely as his/her first witness. began to testify that the teeth were extracted on to which the Plaintiff immediately objected. The jury was removed from the Courtroom and Plaintiff informed the Court that had previously responded to Requests for Admission, stating the date of extraction to be The Plaintiff objected to the Defendant attempting to introduce facts and evidence contrary to the Requests for Admission. Plaintiff argued to the Court that Request for Admissions in accordance with Rule 36 of the Mississippi Rules of Civil Procedure are conclusively established. Plaintiff further argued that there had been no request to withdraw or amend the admissions and Plaintiff would be prejudiced by allowing introducing evidence contrary to the admissions.

8. Plaintiff submits that he/she was prejudiced on the face of record since the admissions were utilized by rendering his/her professional opinion as to the negligence of Defendant allowing evidence contrary to the Requests Admission to be admitted during the trial obviously prejudiced Plaintiff's case in chief.

9. The Court, over Plaintiff's objection, allowed the evidence to be introduced during the trial contrary to the Requests for Admission and the Court cited as authority Rule 1 of the Mississippi Rules of Civil Procedure. The Court informed Plaintiff that Plaintiff would have a right to cross-examine by utilizing the Requests for Admission.

10. The Defendant's own expert witness, testified by deposition days before trial that the teeth were extracted on and at trial claimed the court reporter was in error. Attached hereto as exhibit "C" is the Affidavit of , the court reporter, attesting to the accuracy of his/her transcript reflecting 's testimony that the teeth were extracted on The Court's ruling not only caused extreme prejudice to the Plaintiff by altering the substantive facts relied upon by Plaintiff's expert in formulating opinion testimony, but further deviated from the clear language of Rule 36 stating the matter is conclusively established unless the Court on Motion permits withdrawal or amendment of the admission. In this case, the Defendant never moved to withdraw or amend its admission. The Defendant sought to introduce contrary testimony to which the Court allowed the Request for Admission to remain in place and allow the Plaintiff an opportunity to cross-examine the Defendant with the Defendant's Request for Admission.

11. Plaintiff respectfully submits that Rule 36 of the Mississippi Rules of Civil Procedure rule and case law interpretation of the rule is clear that once a matter is admitted, it is conclusively established and the admitting party cannot introduce contrary evidence even if the contrary evidence is more credible. Plaintiff should be allowed a new trial.

LATE DELIBERATION OF JURY

12. Trial of this action began on morning, and proceeded until both sides rested approximately night,

13. The jury reached a 10 to 2 verdict for the Defendant at approximately five minutes until midnight. Plaintiff submits that requiring or permitting the jury to deliberate at such a late hour on evening makes their verdict suspect and the jurors became fatigued, exhausted and anything but concerned and alert about the Plaintiff's case. (Grinsley V. Tyner, 454 So.2d 482, 485 Miss.1984). Plaintiff submits that it was error to allow the jury to deliberate at such a late hour on evening.

VERDICT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE

14. The Court erred in refusing to instruct the jury to return a verdict for the Plaintiff against the Defendant after all sides had rested.

15. The verdict of the jury and the judgment rendered thereon are contrary to the law and evidence or, in the alternative, against the overwhelming weight of the evidence and manifestly wrong as a matter of law.

16. Plaintiff is entitled to a judgment as a matter of law.

17. The verdict of the jury is inexplicable in the face of the evidence presented, and was rendered under the influence of bias, passion and prejudice.

18. The Court erred in allowing Defendant's witnesses to give conclusions and to make self-serving statements over the objections of Plaintiff's counsel.

WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully requests a Judgment be entered in favor of Plaintiff in accordance with Rule 50(b) Mississippi Rules of Civil Procedure or in the alternative, that a new trial is granted in accordance with Rule 59 of the Mississippi Rules of Civil Procedure. And for such other and further relief as the Court may deem just and proper.

Respectfully submitted,

Attorney for

Of counsel:

Telephone:

MSB #:

Attorney for

CERTIFICATE OF SERVICE

I, , Attorney for Plaintiff, do hereby certify that I have this day hand delivered a true and correct copy of the above and foregoing MOTION FOR JUDGMENT NOTWITHSTANDING VERDICT OR IN THE ALTERNATIVE, FOR A NEW TRIAL to

SO CERTIFIED this the day of