Award wrong, too big, juror soon told Maggio

Judge later slashed nursing home’s hit

CONWAY - Shortly after a Faulkner County jury unanimously agreed on a $5.2 million judgment against a Greenbrier nursing home, a juror emailed Circuit Judge Michael Maggio that day to say she made the “wrong decision” and had been unaware of “the enormity of the amount.”

The jury’s decision came May 16 in a lawsuit against Greenbrier Nursing and Rehabilitation Center as a result of the 2008 death of patient Martha Bull, 76. The home is one of 32 owned by Fort Smith businessman Michael Morton, who donated $24,000 to eight political action committees on July 8, the same day Maggio heard a defense plea to lower the judgment.

Maggio cut the judgment to $1 million on July 11. Later, after judicial campaigns could legally seek and accept donations, all but one of those PACs, almost entirely funded by Morton, gave money to Maggio, who has since withdrawn from his race for the Arkansas Court of Appeals.

Jamie DuVall of Conway sent Maggio the email at8:20 p.m. May 16 and resent it to him about 7:41 a.m. May 17 because she said she was not sure he got the first one, according to records that the Arkansas Democrat-Gazette obtained Wednesday under the Arkansas Freedom of Information Act.

Maggio wrote attorneys on both sides of the case on May 17 to advise them of the juror’s email, which he included, but with DuVall’s name redacted. That was a Friday, and he scheduled an “on the record” courtroom meeting with the attorneys for Monday afternoon, May 20.

He added: “I also order all counsel, their staff, and the litigants to not contact in any manner any of the jurors (including the alternate) until further notice of this court.”

Two state agencies are investigating the contributions to Maggio, who has been stripped of all cases by the Arkansas Supreme Court pending further notification. He also is under investigation for unrelated online comments he made about a range of topics, including women, sex, divorce and race.

In her email, DuVall wrote: “I have a very big concern regarding the amount of money that we awarded to the plaintiff this evening. While I agree with the verdicts we signed to. I was unaware of the enormity of the amount. Also, our reasoning behind awarding that much money was to show them they did wrong. We did not believe they actually caused her death, as our verdict shows. Many of the jurors were uncomfortable with this amount, but wanted them to know they did wrong also.

“The plaintiff threw out a number and since we believed they were ‘more wrong than right’ we chose some less than he asked for. We had little direction on how to determine an amount.

“It is my strong belief that awarding this amount of money is wrong. I know most jurors weren’t comfortable awarding this amount either.

“I am writing this email to admit my very, uninformed and wrong decision and ask if there is anything I can do to right this wrong. Surely, 12 people cannot really award 5.2 million dollars after deliberating a few hours. This is a process that should take longer, and/or have more instruction,” DuVall concluded.

It was unknown Wednesday whether any of the attorneys had contacted DuVall or any other jurors after they were dismissed from the trial May 16 but before Maggio ordered the lawyers and their clients not to do so.

Thomas Buchanan, the lawyer for two of Bull’s daughters who filed the lawsuit, said he did not contact any jurors. Fort Smith lawyers who represented the nursing home were unavailable Wednesday, their office said. Little Rock lawyer Lyn Pruitt, who also represented the home, did not return phone or email messages seeking comment.

Morton did not return messages left on his office and cellphones.

Buchanan said Wednesday that once a judge releases a jury, attorneys sometimes contact jurors unless a judge orders otherwise.

Buchanan and Lauren Hamilton, an attorney representing Maggio, said neither side requested that Maggio ask jurors individually how they voted on each of the panel’s five verdicts.

Buchanan said Maggio did not ask attorneys during the May 20 meeting if any of them already had contacted any jurors.

Maggio said he pretty much agreed with the plaintiffs that the email “was really nothing he could consider,” Buchanan said.

The jury ruled on five allegations and was unanimous on the judgment sum, online court records show. Only the foreman must sign a verdict form for unanimous decisions.

Unlike in criminal trials, just nine of the 12 jurors must agree on a verdict in a civil trial. On verdicts that are not unanimous, the verdict form instead asks for the signatures of nine concurring jurors.

The jury in this case unanimously agreed to hold the nursing home responsible for a claim of “ordinary negligence” that was “a proximate cause” of damages or injuries suffered by Bull, and on the $5.2 million judgment, online court records show.

At least nine jurors agreed the home was responsible for “medical negligence” for those damages or injuries and agreed the home had deprived or infringed upon Bull’s statutory “resident’s rights.” The jury unanimously agreed that “a wrongful act or omission” was not “a proximate cause” of Bull’s death.

On those nonunanimous decisions that were signed by nine of the jurors, a signature that appears to be DuVall’s is the first one on each of the verdict forms.

DuVall did not return an email request for comment Wednesday. Her phone number and home address were unavailable.

On June 5, defense lawyers filed a motion asking for permission to contact jurors, saying the juror’s email had come “immediately” after the panel returned its verdicts.

“In order to fully explore all avenues of relief, Defendant should have a right to contact jurors,” defense attorneys wrote.

They also asked Maggio to hold off on the judgment order for 10 days. They noted that once the judgment is entered, they would have only 10 days to file any post-trial motions. They said they were asking “for a short window of time to speak with jurors (if they are inclined) and to evaluate any and all potential options in keeping with the limitations” of Rule 606 of the Arkansas Rules of Evidence.

Maggio entered the judgment on June 6, but he agreed on June 12 to delay its enforcement pending post-trial motions.

The judge, however, denied the defense’s request to talk with jurors, said Buchanan and Hamilton, the attorney representing Maggio. A copy of that decision, sent by letter, was unavailable late Wednesday.

On June 7, attorneys for Bull’s daughters asked the judge to deny the request and cited the same rule.

Those attorneys wrote, “As the Supreme Court has explained, Rule 606(b) ‘ensures that jury deliberations should remain secret, unless it becomes clear that the jury’s verdict was tainted by a showing of extraneous prejudicial information or some improper outside influence.’”

They added that the email sent to Maggio by a juror “expressing concerns with the amount of the verdict states nothing as to whether any extraneous information or evidence was brought to the jury’s attention.”

Indiana University law professor Charles Geyh, who has written books on judicial ethics, said disclosure to attorneys, as Maggio did, is the proper course in such a situation as this one.

The juror’s email was “a little odd,” Geyh added. But “jurors are laypeople,” he said.

“There’s nothing the juror indicated to signify corruption,” Geyh said.

“It sounds like a well-intentioned person,” he said.

“If I’m a judge, it [the email] shouldn’t matter at all” in decisions, Geyh said.

“Who knows what’s going on in that juror’s mind?” Geyh said. “If it [the judgment verdict] was unanimous, the juror went along with it and didn’t have to go along.

“What it could easily be is the juror is talking to [her] family or talking to [her] friends” afterward, and someone said, ‘What’s wrong with you?’” Geyh said.

Front Section, Pages 1 on 04/24/2014

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