Jurors face scrutiny after verdict on malpractice

Rene Stutzman
ORLANDO SENTINEL
Sentinel Staff Writer

June 26, 2006

SANFORD -- The size of the malpractice verdict was stunning: $28 million, one of the biggest in Central Florida history.

Now, as the losing attorneys work to knock that down, they're also trying a rarely used and very aggressive tactic: attacking individual jurors and accusing the whole panel of prejudice.

Defense attorneys say three of six jurors lied during jury selection, and they want those jurors and the others hauled back into court to explain themselves.

"It is obvious we feel that justice was not served by this verdict, and we are going to zealously pursue all appropriate remedies," defense attorney Richard Womble said.

He represents Dr. Robert Bowles, a longtime Longwood obstetrician-gynecologist, and his medical group, Physician Associates of Florida. In April, a jury found them guilty of malpractice.

Jeannette Davis, 42, a state Health Department investigator from Altamonte Springs, underwent surgery in 2001 for minor incontinence. But things went wrong, and now she cannot urinate naturally. She says she must catheterize herself twice a day, something that will last the rest of her life.

Her trial lasted six days. Jurors deliberated two hours before returning their $28 million verdict.

Davis is still able to hold a full-time job, and the mistake will not cut short her life -- two things that often drive up medical-malpractice awards.

Before the trial began, Davis' lawyer, Joseph Taraska, had offered to settle for $275,000, according to court records. But the doctor, his partners or his insurers said no.

Other Florida juries that have heard similar urinary-tract cases in the past 10 years have handed down awards averaging $290,000, according to pleadings filed by Womble.

Seeking new trial

Since the trial, Womble has filed a flurry of motions, attacking the verdict in a variety of ways. Some are conventional: He is asking Circuit Judge Debra S. Nelson to order a new trial, alleging, among other things, that Davis gave misleading testimony and that her attorney made an improper closing argument.

He is also asking Nelson to reduce the judgment to $290,000.

But his most dramatic request is to interview jurors.

"It's very rarely granted because I think the court, understandably, doesn't want to interfere or impose upon the province of the jury," said Scott Noecker, one of Davis' attorneys.

Womble alleges that three jurors lied during jury selection: Two failed to disclose that they had been involved in lawsuits; the third told them about one suit but failed to mention at least nine others, according to defense pleadings.

Most of those suits were about unpaid debt.

The juror with the most complicated legal history is Judith E. Mathis. She is the one who told lawyers she had been involved in a single suit, one involving bodily injury.

But Womble's investigators turned up at least nine others that named her as defendant. In each case, she was accused -- mostly by credit-card and mortgage companies -- of not paying her bills. One woman accused her of bouncing a check.

When contacted about the discrepancy, Mathis told the Orlando Sentinel, "I don't want to speak about this. . . . I told the truth about everything."

Another juror, Wilbur "Chip" Seeley Jr., had been named in three suits, at least two in which he was accused of not paying his bills, according to defense pleadings. He could not be reached for comment.

The third juror is foreman Steven D. Holloway of Altamonte Springs. He was sued twice: once about a traffic accident and once in an accusation of not paying property-association dues, according to court records.

"To my knowledge, I haven't been a party to a lawsuit," Holloway told the Sentinel recently.

But when questioned further, he acknowledged both suits. He didn't think of them as lawsuits, he said, because he never went to court and never hired a lawyer. In the traffic-accident case, an insurance company resolved the matter, he said.

In the dispute about property-association fees, Holloway said he was out of work and couldn't afford what he owed, so he just let the association seize the property.

"It seems to me like they're trying to muddy the legal waters," Holloway said. "We made a fair decision. It was made on the basis of evidence."

Juror deliberations 'sacred'

Once jurors return a verdict, Florida judges rarely allow lawyers to interview them, according to lawyers and legal scholars.

"The courts are not allowed to be a seventh juror," said Miami personal-injury attorney John Elliott Leighton. "Generally speaking, the deliberations of jurors are sacred."

Those interviews are relevant only if there is evidence of bribes, threats or that jurors agreed in advance to ignore the law, according to Michael Seigel, professor at the Levin College of Law at the University of Florida.

"If they misunderstood the law, if they sort of individually decide, 'Oh, gosh, we ought to be generous here,' if they made a mistake about the law -- none of that is basis to attack the verdict," he said.

Womble argues there is evidence of juror prejudice. Jurors, he said, appeared to give Davis money for things she never requested: medical bills and future economic losses.

Davis asked only for money for pain and suffering, but in an interview broadcast by WOFL-Channel 35 two days after the verdict, Holloway said that Davis "deserves enough money that she could live on" and that $28 million "is not a lot of money if you consider the medical bills. . . ."

Holloway, the foreman, said jurors did not award damages specifically for medical or living expenses. That's merely what he assumed she would do with some of the $28 million, he said.

Attorneys are set to present their arguments to the judge Friday.