Med-mal appeal moving forward with no briefs

David Yates Feb. 17, 2010, 5:56am


Two weeks from now, justices seated on the Texas Ninth District Court of Appeals are slated to review a medical malpractice trial despite the fact that they have yet to receive any briefs related to the case.

Eight months have passed since plaintiff's attorney Valorie Davenport filed the appeal, but she has not filed any arguments for the court to consider and the case has been set for submission on briefs for March 2.

A Ninth Court employee told the Southeast Texas Record the justices decided to push the appeal forward without the briefs.

Without the briefs, justices have no way of knowing what issue is being appealed, nor can the defendants cannot respond to her claims.

Davenport filed the appeal last June, six months after she failed to convince a Jefferson County jury that her client was the victim of medical negligence. She has yet to file a single brief for the case.

The trial in question, Thompson vs. Woodruff, ended Jan. 30, 2009, and centered on plaintiff Stacy Thompson's claim that several doctors had negligently failed to timely diagnose and treat her breast cancer.

But jurors found no wrongdoing on the part of Dr. James Woodruff or two other defendant doctors.

Several months later, Davenport asked Judge Donald Floyd for a new trial. In her motion for a new trial, she accused the Southeast Texas Record of jury tampering by writing negative stories about the trial, citing it as one of the reasons she lost the case.

In addition to accusing the Record of jury tampering, Davenport asserted Judge Floyd abused his discretion in denying plaintiffs' discovery requests.

And she claimed there had been jury misconduct involving one juror who allegedly failed to disclose her previous marriage to, and acrimonious divorce from, the plaintiff's cousin.

During a May 14, 2009, hearing, Judge Donald Floyd denied the motion for a new trial. Davenport told the court she would appeal.

During the original trial, Davenport and the other attorneys drew attention to the case around the Jefferson County Courthouse almost as soon as it began.

On one of the first days of the trial, opposing counsel got into a shouting match 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.

On Jan. 6, 2009, Judge Floyd had to dispatch a bailiff 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.

At least three times Judge Floyd had his bailiff escort jurors out of his courtroom so he could privately admonish the attorneys for their outbursts and other unprofessinal behavior.

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

During a Jan. 14, 2009, 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 by ruling against her client unjustly.

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

Trial case No. E167-187
Appeals case No. 09-09-00247-CV

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