WEST VIRGINIA RECORD

CHARLESTON -- A doctor and hospital sued for wrongful death and negligence in the death of a woman could face another trial because of alleged juror bias.

A jury ruled in favor of Carl Jones and Weirton Medical Center in June 2006. But Robert and Lawrence Macek, administrators of Phyllis Macek's estate, contend two of the jurors should not have been allowed to sit in the box and asked Brooke Circuit Court for a retrial.

After the court denied the request Oct. 23, 2006, the Maceks appealed to the West Virginia Supreme Court of Appeals, which agreed to hear the case.

The Maceks maintain that two jurors -– David A. George and Glen Stolburg -– should not have been allowed to serve on the jury.

The two were members of a jury that heard the case of Phyllis Macek. She died from septic shock several hours after Jones perforated her colon during the course of an emergency colonoscopy in February 2000, an appeal states.

Before jurors were eligible to serve on the jury to hear Macek's case, they were required to answer a special questionnaire, according to an order filed in Brooke Circuit Court.

As a result of some of their answers, six jurors were removed from the jury pool, Stephen Brooks, attorney for Jones and Weirton Medical Center, said.

If the Court had any doubt about a juror's responses, it can strike that person from a jury "for cause," which happened to four of the six jurors that were removed, Brooks said.

George, too, should have been struck from the panel for cause, but was not, the Maceks claim.

George's responses to certain questions indicated that frivolous cases and greed on the part of the plaintiffs and their attorneys have cause malpractice premiums to skyrocket, the order states.

Robert and Lawrence Macek claim the Court asked further questions and discovered George was biased because he knew a Wheeling doctor who lost a million dollar suit.

George's own doctor also told him she wasn't sure if she could continue treating him until she had finished reassessing whether she continued to practice in West Virginia, the order states.

"We're not saying the Court shouldn't have done it (ask the questions)," Scott Blass, an attorney for the Maceks, said during oral arguments Sept. 3 before the state Supreme Court. "We're saying the Court did the right thing, but reached the wrong conclusion."

Brooke Circuit Court found George could be impartial based on several of his comments, according to the order.

"Mr. George did state in his Questionnaire in response to if he could return a verdict against Dr. Jones if he found him negligent: 'If I believe that his guilt is proven beyond a reasonable doubt, I would probably have no choice,'" the Court stated in its order. "Mr. George's incorrect assumption of the standard of proof in a civil medical malpractice case, as opposed to a criminal case, is very common among prospective jurors and does not readily indicate a bias."

Robert and Lawrence Macek claim that like George, Stolburg should have been struck from the panel for cause, but was not.

They say Stolburg responded untruthfully to a question that asked him if he read, heard or discussed anything about medical negligence actions, lawsuits or a liability crisis. Stolburg answered no, but worked as a sales manager for Ogden Publishing.

The Maceks claim the company was very vocal and biased in its coverage of a "malpractice crisis."

The Court found Stolburg was answering truthfully after he said he did not read the paper a great deal and that he only oversaw the delivery of the newspapers, the order states. He also gave no indication of untruthfully answering any other questions.

Jones and Weirton Medical Center contend that jury selection took eight hours on the first day of the trial, showing the judge was careful in selecting the jury panel.

"If questions were raised, the judge would individually call them in his chambers and qualify them," Brooks said at the Supreme Court oral hearing. "I think a clear reading of the transcript shows a lack of bias."

Jones and Weirton Medical Center claim that neither Stolburg nor George was biased.

"In both instances, the totality of information provided by Mr. George and Mr. Stolburg never reached the threshold for bias and prejudice that justifies a characterization of questioning of either of them as 'rehabilitation,'" the brief they filed with the state Supreme Court states.

Stephen R. Brooks and Robert C. James of Flaherty, Sensbaugh and Bonasso in Wheeling are counsel for Jones.

Brent P. Copenhaver of Colombo & Stuhr in Morgantown is counsel for Weirton Medical Center.

Scott S. Blass and Geoffrey C. Brown of Bordas & Bordas in Wheeling are counsel for the Maceks.