December 5, 2013

162017_132140396847214_292624_nOn November 18, 2013, the Supreme Court of the State of New York County of Onondaga (“New York Supreme Court”) overturned a defense verdict and granted a new trial in a New York medical malpractice case after the trial judge spoke with jurors following their verdict and after the conclusion of their jury service, at which time the jurors spontaneously inquired about the person who “stalked” them throughout the trial. The “stalker” turned out to be a lawyer for the insurance company for the defendants, who was hired to “monitor the trial.”

One of the jurors testified under oath: “He followed us everywhere. When we would go to lunch, he’d follow us to where we were going. One day we had an hour and 15 minutes, a little bit of extra time, so we walked down to Armory Square to Blue Tusk. And I told the other jurors, this guy is following us everywhere. So after the third time I saw him, I said look behind you, that’s what I’d say to them, and he would always be there. But when we would go on the elevator, he would always be there. When we got outside, we would go to have a cigarette right out front, he’d always be standing close by. When we got back on the elevator to come up, he was always there … And it bothered me. And one day I said to him, excuse me, are you a reporter. And he kept his head up and he said, I can’t talk to you, I’m not supposed to talk to you. It’s not that I don’t want to, I just can’t talk to you. I’m not supposed to … the only times we did not see him out of that whole time was once we went to Ale and Angus and once we went over to The Mission and we didn’t see him there … And he was always pulling something similar to that, like a briefcase, it was a half of briefcase on a rolling thing. And I don’t know, he was creepy, you know. And he was always in the audience. So we didn’t know who he was. That’s why I asked him if he was a reporter because it was getting on my nerves, he was always there. We’d sit in Armory Square and just talk, he’d be right behind us.”

The same juror further testified that he saw the stalker talking with the defendants and their attorney and surmised that the stalker “was working for them and he was typing everything just like a court reporter so that they would have the documents.” The juror relayed this information to the rest of the jurors: “I told them I think I got this figured out, I know who he is.”

The medical malpractice defendants alleged that the trial judge had engaged in impermissible ex parte communications with the jury. The New York Supreme Court responded that trial courts have wide discretion in addressing the effects of third party contacts on jurors and the decision to grant or deny a mistrial is within the sound discretion of the trial court that is made on a case-by-case basis.

The New York Supreme Court held that the lawyer had made improper contact with the jury. The New York Supreme Court stated, “Over the course of a 15-day trial, [the lawyer] continuously followed and monitored the jurors when they went to lunch, when they took smoking breaks, and when they rode the elevator … Even without characterizing the behavior as stalking, [the lawyer’s] contact with the jurors constituted improper misconduct. The court also finds that the misconduct was prejudicial and likely to influence the verdict … By returning a verdict in favor of defendants, the jury could be assured that their stalker would be satisfied. Similarly, the jurors’ failure to alert the court to the existence of the stalker until after they delivered their verdict is consistent with a theory of intimidation and fear. In a case such as this perceptions are critical.”

The New York Supreme Court concluded, “Based on the facts of this case, a new trial is required. [The lawyer’s] conduct violated the sanctity of the jury, raises ground for suspicion that the decision was founded on something other than the evidence, and was prejudicial and likely to influence the verdict. This is not a matter of an isolated elevator conversation … This is a case where jurors over a 15-day period believed that they were stalked, videotaped and closely monitored by a person they believed worked for defendants. This is a case where jurors performing their civic duty were made to feel bothered and scared. This is a case where the administration of the law was imperiled … For the forgoing reasons, plaintiffs motion is GRANTED, and a new trial is ordered.”

Source: Kelly Varano, as parent and natural guardian of infant Jeremy Bohn v. FORBA Holdings, LLC, et al., Index No. 2011-2128 RJI No. 33-11-1413.

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