Bailiff rounds up wayward attorney during medical malpractice trial

David Yates Jan. 6, 2009, 8:32am

Valorie Davenport

As if she were a stray steer, a bailiff for Judge Donald Floyd was ordered to go wrangle up a plaintiff's attorney who had wandered away from a trial to attend a hearing in a different court.

At around 10 a.m. on Tuesday, Jan. 6, plaintiff's attorney Valorie Davenport was escorted back into Judge Floyd's 172nd District Court by one bailiff and two armed deputies.

Davenport, who is representing plaintiff Stacy Thompson in a medical malpractice trial, was supposed to be in Floyd's court at 9 a.m., but much to the dismay of the defense, was instead busy representing a different client in a temporary restraining order hearing across the hall.

After the court learned of Davenport's whereabouts and had her escorted back, attorneys for the defense asked Judge Floyd to consider imposing sanctions against Davenport for what they said was the lawyer's continuous tardiness.

This was not the first dramatic episode to take place during the trial of Thompson vs. Dr. James Woodruff et al, which started Dec. 1 and has been put on hold several times due to an attorney's vacation and holiday breaks.

Twice now Judge Floyd has had his bailiff escort jurors out of his courtroom so he could privately admonish lawyers on both sides for acting unprofessionally during the trial.

On several occasions, Judge Floyd has threatened to hold Davenport in contempt and declare a mistrial, but on Tuesday again chose not to take any disciplinary actions against Davenport.

Nonetheless, the theatrics did not end with Davenport's return. Less than an hour into the Tuesday morning trial, the judge once again had the jury escorted out of his courtroom to settle a dispute between the opposing attorneys.

The defense team said it discovered that some of the evidence had been marked up, and they accused Davenport of taking home evidence and altering it in hopes of tampering with the jury.

This was also not the first time the defense had accused Davenport of jury tampering.

As soon as the trial began last month, an explosive shouting match erupted between opposing counsel when it was discovered Davenport had passed out notebooks and binders containing possible case information to jurors without notifying the defense.

The outburst, which was the first of many, caused Judge Floyd to briefly stop the trial so he could threaten to hold the lawyers in contempt.

Davenport has been in the news before. She made headlines in 1990 when she won an acquittal for her sister, who had been charged with illegally using the men's room after she gave up on the long line to the ladies' room during a George Strait concert in Houston.

In 2004, Davenport was embroiled in a case with a former associate at her law firm. The associated complained that contingency fees owed to him were not dischargeable when Davenport filed for bankruptcy. He alleged Davenport committed fraud, embezzlement and larceny. U.S. Bankruptcy Judge Jeff Bohm ruled that the associate's fees should be paid and that Davenport "speaks out of both sides of her mouth."

Thompson Trial Background

The trial itself centers on Stacy Thompson, who sued several of her treating doctors in 2002, claiming they had negligently failed to diagnose her alleged breast cancer in a timely manner.

Jurors have heard testimony from the plaintiff's medical expert, Dr. Bullock, who testified Thompson was experiencing a bloody nipple discharge - a sign of cancer - since in 1997 but was not correctly treated until 2001.

Thompson has also testified that her treating physicians never even informed of the possibility that her condition could be the result of breast cancer.

In July 1997, she sought treatment from Dr. James Woodruff, who after running multiple test, failed to detect any signs of breast cancer.

In her opening remarks, Davenport told jurors Dr. Woodruff was negligent for not prescribing pain medication to Thompson and forcing her to undergo a galactogram (an imaging of the breast duct).

Court documents show Dr. Woodruff attempted to perform the galactogram test on Thompson three separate times, but she kept passing out from the pain.

The plaintiffs argue he was negligent for not prescribing her pain medication and making Thompson undergo the test a fourth time.
Court documents and testimony show that Dr. Woodruff had already performed several other types of tests, all of which came up negative.

A few months after Thompson's consultation, Dr. Woodruff retired.
Over the next four years, Thompson was treated by multiple physicians including doctors Duane Larson and Scott Kacy, both of whom are defendants in her suit.

During her opening remarks, Davenport accused Drs. Larson and Kacy of negligence, claiming they both failed to detect Thompson's breast cancer and failed to order a new round of tests - even though Thompson was still claiming to experience a bloody discharge from her right nipple.

In February 2001, a biopsy was performed on some of Davenport's breast tissue by the late Dr. Larson. The suspicious tissue was sent to M.D. Anderson Cancer Center in Houston for further testing, where it was concluded Thompson had intradural carcinoma, modified black's nuclear grade 2 with Focal Necrosis ( early breast cancer), court documents show.

Thompson underwent surgery to have the cancerous cells removed and lost most of her right breast as a result. Plastic surgeons were unable to construct a new nipple on the breast, court documents and testimony show.

In his opening statement, defense attorney James Edwards argued Thompson's breast cancer was still in stage zero (the earliest stage) and that her bloody discharge was the result of a different "benign" condition that was detected and treated.

"Three different physicians looking for lumps … and breast cancer tests reported a normal exam and no bloody discharge," Edwards said. "There was never any cancerous tumor. These doctors did the appropriate tests."

Thompson, who had to have a back muscle removed to repair her breast, claims she can no longer work and is suing for past and future lost wages, mental anguish and disfigurement.

Her husband, also a plaintiff in the suit, is suing for loss of consortium and household services.

Dr. Larson is represented by attorney Sprott, Dr. Woodruff is represented by his son, James Woodruff II, and Dr. Kacy is represented by Edwards.

Case No. E167-187

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