CHARLESTON – Justices of the West Virginia Supreme Court of Appeals must decide whether prejudice in an Ohio County jury cheated a dead man's sons out of a fair verdict.

In February, jurors found Valley Radiology physician Mark Kenamond liable for the death of Ttahewm Bates, but they awarded his estate nothing for sorrow, mental anguish or lost income.

Ohio County Circuit Judge Martin Gaughan accepted the verdict of liability but ordered a new trial on damages.

Now Valley Radiology wants the Supreme Court of Appeals to uphold the jury's decision or order Gaughan to try the case all over again.

Valley Radiology has asked for a writ of prohibition that would keep Gaughan from holding trial only on damages.

Justices plan to hear oral arguments Wednesday, Nov. 1.

Bates died Aug. 8, 2000, leaving three minor sons. The administratrix of the estate, Margaret Bates, sued Valley Radiology in 2001.

She alleged that Kenamond failed to diagnose a blood clot in Bates's brain by improperly interpreting a magnetic resonance image.

During jury selection this February, the sons heard potential jurors making derogatory comments about the lawsuit. They reported the comments to Gaughan.

Gaughan privately questioned three potential jurors and sent them away.

Gaughan then questioned other potential jurors to see if the comments had tainted their judgment. He decided not to dismiss anyone else.

At trial, jurors heard that Bates earned base pay of $57,665 as manager of a department at Swisher International. A witness estimated the loss of income at $899,264.

Jurors heard that medical and funeral expenses added up to $158,271.79.

At the close of trial Feb. 10, Gaughan told jurors the parties had stipulated that if they found for the plaintiff, the estate would receive the medical and funeral expenses.

As jurors deliberated, they asked if they had to award medical and funeral expenses. Gaughan sent word that they had to do so.

Jurors then awarded medical and funeral expenses but nothing else.

Gaughan declared, "That is a problem." He asked the estate's attorney if he should send the jury back for further deliberation. The attorney said no.

Eleven days later, the estate moved for a new trial on damages.

At a hearing Gaughan said, "I believe there was some prejudice on the jury, perhaps not against the family but in favor of the doctor or doctors in general which caused them not to award damages under circumstances when those damages were necessary."

In May, Gaughan granted a new trial on damages.

In July, Valley Radiology attorney Jonathan Anderson of Charleston asked the Supreme Court of Appeals for a writ of prohibition against Gaughan.

Anderson argued that Gaughan should either let the verdict stand or throw out the entire trial and start over.

Anderson argued that the estate should have let Gaughan send the jury back for further deliberations.

Responding for the estate, William Crichton VI of Parkersburg wrote, "It would not have been practical to send the same jurors back to consider the issue of damages because there was almost no chance they could return a fair verdict."

He wrote, "No reasonable person could have sat through the testimony of these grieving family members and found that there was no sorrow, mental anguish or loss of companionship, comfort and
advice."

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