We have had many clients who were children of an aging parent.  The child may feel that Momma is being taken advantage of by a sibling of the client.  There may be threats by more than one child to seek court appointment as Momma’s conservator, to prevent her from being able to give assets or property away or to challenge a gift she already made.  In such cases, the client may expect the lawyer to contact Momma’s doctors to confirm that she is now mentally incompetent.  A recent Mississippi Supreme Court decision shows that such contact with Momma’s medical provider – without Momma’s express consent and notice to the other party – may prevent the admission of those medical opinions or statements in a court proceeding.

Facts: The Lafayette County Chancery Court set aside a prior deed of about forty acres fronting Highway 6 near Oxford. The grantor of the deed was Mary Saunders Waller, a ninety-year-old woman who was hard of hearing and legally blind.  The grantees were Waller’s daughter and son-in-law, Brenda and Craig Gordon.  Brenda was one of Waller’s four children.  The Gordons lived near Waller and had been her caretakers for many years.  The evidence also showed that Waller had co-signed on loans with the Gordons. 

A conservator was appointed nine months before Waller’s death in May 2017, and the conservator filed a petition in the probate action to set aside the deed to the Gordons. The Gordons admitted to a confidential relationship with Waller, and the chancellor set aside the earlier deed based on the presumption that the Gordons had obtained the deed through undue influence on Waller and not as a result of independent action by Waller. At the hearing, the Chancellor denied the admission of statements obtained from Waller’s physicians by the Gordons’ attorney.

On appeal, the Gordons argued that the chancery court erred by excluding the testimony of Waller’s attorney and physicians because of ex parte contact by the Gordons’ attorney. “Ex parte” means from or on one side of a dispute without notice to or the presence of the other party.  Based on case law and Rule 503(f) of the Mississippi Rules of Evidence, the chancellor excluded the testimony of Waller’s physicians because the Gordons’ attorney had engaged in ex parte communications with those physicians without Waller’s consent and without notice to the conservator or her attorney.  The Supreme Court agreed that such medical evidence was inadmissible at the trial under Rule 503(f).

GORDON v. WALL, NO. 2018-CA-00531-SCT: Source