Record accused of jury tampering in medical malpractice trial

David Yates May 13, 2009, 3:30am


Plaintiff's attorney Valorie Davenport has filed a motion for a new trial accusing the Southeast Texas Record of jury tampering, one of the reasons she claims she lost her medical malpractice case.

The trial of Thompson vs. Woodruff, which ended Jan. 30, centered on Stacy Thompson's claim that several of her treating doctors had negligently failed to diagnose her breast cancer in a timely manner.

Judge Donald Floyd of the 172nd Civil District Court presided.

Two months after jurors found no wrongdoing on the part of the three defendant doctors, Davenport filed a motion seeking a new trial on at least eight grounds. Davenport's motion alleged that:

  • Judge Floyd abused his discretion in quashing plaintiffs' discovery requests;
  • Judge Floyd abused his discretion in denying plaintiff's motion for a continuance of the trial;
  • The verdicts in favor of the defendants were against the great weight of the evidence and manifestly unjust;
  • Defense counsel engaged in improper conduct, including making knowing misrepresentations to the Court and "speaking objections" to evidence that were essentially improper argument;
  • The jury instructions were erroneous;
  • There was jury misconduct involving one juror who allegedly failed to disclose her previous marriage to, and acrimonious divorce from, Stacy Thompson's cousin;
  • There was jury misconduct involving two jurors who allegedly openly expressed their resentment toward plaintiffs because of their loss of income due to the trial; and
  • The Record engaged in jury tampering.

    A hearing will be held on the motion for new trial on Thursday, May 14, before Judge Floyd.

    With respect to the jury tampering allegation, Davenport says one of the trial's jurors, "if subpoenaed to testify, will confirm that agents (apparently with the Southeast Texas Record) passed out its weekly editions to persons sitting … near the entrance to the 172nd District Court during the weeks of the" Thompson trial.

    "The acts (of distributing these periodicals to … sitting jurors) constituted attempted jury tampering and probably resulted in the unjust verdict … and requires that a new trial be granted," the motion states.

    In response to Davenport's motion, defense attorney Joel Sprott writes that "there is no evidence of jury misconduct."

    "According to plaintiffs' allegations, she has had an opportunity to converse with specific jurors and attempt to obtain affidavits from them, yet she only filed her own affidavit," Sprott writes. "Without affidavits from jurors, plaintiffs' grounds are without merit."

    The plaintiff's affidavit which Sprott refers to was authored by Stacy Thompson. The defendants claim that Thompson sent letters to the jurors after the trial defaming the doctors in her suit.

    Because of Thompson's actions, defense attorney James Woodruff, II will ask Judge Floyd to impose sanctions against her during the Thursday hearing, court papers show.

    This is not the first time an attorney entangled in this case has sought sanctions.

    Nor is it the first time Davenport has complained about the Record.

    In the final days of the trial, Davenport had accused the newspaper of "slanderous and inaccurate" reporting and asked Judge Floyd for a mistrial.

    During a Jan. 14 hearing, Davenport told Judge Floyd, an African American, that the Record's coverage of the trial made her look as if she were "disrespecting" the judge.

    Davenport said she believed that if the nine black jurors had read the stories in the Record they would punish her with an unjust verdict.

    By the end of the hearing Davenport withdrew her motion for mistrial.

    That was only one of many unusual turns.

    On Jan. 6, the Record reported that a bailiff for Judge Floyd was ordered to retrieve Davenport, who had left the courtroom to attend a hearing in a different court.

    She returned with one bailiff and two armed deputies in tow.

    At least three times, Judge Floyd had his bailiff escort jurors out of his courtroom so he could privately admonish lawyers on both sides for acting unprofessionally.

    As soon as the trial began, 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 defense accused Davenport of jury tampering.

    Judge Floyd had the notebooks removed, but he declined to take any disciplinary action.

    Over the past year, the Record has chronicled two trials held in Judge Floyd's 172nd District Court that ended in verdicts favorable to the defense, only to have the judge grant a plaintiff's motion for a new trial with little or no explanation.

    In May 2008, Judge Floyd ordered a new trial after a jury returned a verdict in favor of DuPont in a lawsuit brought on behalf of a deceased pipe-fitter who had allegedly contracted mesothelioma due to exposure to asbestos. Floyd's two-paragraph order contained no explanation for his decision.

    In December 2008, Judge Floyd ordered a new trial in a scaffolding injury case after a jury had awarded the injured worker $178,000 for future medical expenses but rejected claims by the worker and his wife for non-economic damages, including mental anguish, pain, and loss of consortium.

    Judge Floyd's order consisted of a single sentence granting a new trial "in the interest of fairness and justice."

    Thompson case background

    In July 1997, Stacy Thompson sought treatment from defendant Dr. James Woodruff, who after running multiple tests, failed to detect any signs of breast cancer.

    A few months after Thompson's consultation, Dr. Woodruff retired.
    Over the next four years, Thompson was treated by multiple physicians, including Duane Larson and Scott Kacy.

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

    Case No. E167-187

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