Should $10 million malpractice 'advisory verdict' be counted? Plaintiffs say yes. Judge doesn't agree
The verdict was dubbed the verdict that wasn’t.
As The Courier Journal reported Feb. 15, after declaring a mistrial in a medical malpractice case because of alleged juror misconduct, a Pike Circuit Court judge let the jury deliberate to a verdict – without telling them their verdict wouldn’t count – to help both sides evaluate the case and possibly strike a settlement.
But when the jury returned a $10 million judgment for the family of Mary Gause, who died 841 days after she was allegedly a victim of malpractice at Pikeville Medical Center, the plaintiff understandably wanted it to count after all.
In a motion filed Feb. 20, attorneys for Gauze’s widower and two children said Judge Howard Keith Hall got his facts wrong.
Monday, Hall announced he wouldn’t hear the motion, declared the so-called advisory verdict null and void, then said the case will be set for retrial.
More:A KY man's wife & daughter are charged with his murder. His other daughter turned them in.
More:Abandoned at birth, Louisville lawyer climbs to the top, nailing million-dollar verdicts
The plaintiff’s lead attorney, Ross Mann, said the court advised that his decision declaring the advisory opinion moot − and ordering a new trial − thus rendered the motion moot.
Hall declared the mistrial after he thought one juror reported that another, Angela Kendrick, said before the trial began − and in front of other jurors − that she had asked her husband never to take her to the Pikeville Medical Center.
Mann's motion cited affidavits from Kendrick and four other jurors who said Kendrick made her derogatory comment about the medical center as the jury began deliberating – based on the evidence she heard during the two-week trial – not on the day the trial began, when it would have been improper and showed she had prejudged the case.
Mann said in the motion that there was nothing wrong with a juror expressing an opinion about the case during deliberations. In fact, he said it would be a “patent departure from reality” to expect a juror to have no opinion after listening to evidence for two weeks.
More:Should mother who killed husband decide where her son lives? Child's grandparents say no
More:Her doctor used his sperm to inseminate her. 50 years later, she's getting a shot at justice
The motion says Kendrick, who was kicked off the jury when the mistrial was declared, should not have been excluded. “I did not speak to any of the jurors about the case until deliberations began on Feb. 9,” she said.
The motion also says that because the jury was not really tainted before trial, the verdict should count and the medical center should have to pay the $10 million.
According to affidavits, it was the juror who reported her to the court − identified as Chris Little − who was biased. Other jurors reported he was unhappy that a majority of the jury found the medical center liable.
Kendrick said in her sworn statement that the juror identified as Little said the plaintiffs’ lawyers were “nothing but a bunch of ambulance chasers.”
According to a transcript of Little’s discussions with Hall at the bench, the judge may have misconstrued his remark to think Kendrick made her prejudicial comment before the trial started.
“Did she make that statement based on what she heard in the trial, or did she bring that preconceive feeling into the courtroom?” Hall asked.
“That’s why I took it as,” Little replied. He could not be reached for comment.
The motion says the judge erred in not interviewing every juror under oath about what transpired before declaring the mistrial.
Hall did not explain his decision to declare the advisory verdict void or to not hear the motion. But he said previously that both sides agreed to let the jury render an unofficial verdict.
Don Brown and Jim Smith, lawyers for Pikeville Medical Center, did not respond to questions about the case.
This article originally appeared on Louisville Courier Journal: Pikeville Medical Center malpractice lawsuit decision
