WEST VIRGINIA RECORD

CHARLESTON – Bias in an Ohio County jury shortchanged a dead man's family, according to the West Virginia Supreme Court of Appeals.

The Justices unanimously ruled that Circuit Judge Martin Gaughan can hold trial to determine the damages that Valley Radiology owes to the estate of Ttahewm Bates.

In February jurors found Valley Radiology liable for Bates's death, but the jurors awarded nothing for sorrow, mental anguish or lost income.

In May Gaughan ordered a new trial on damages due to jury bias.

Valley Radiology petitioned the Justices for a writ of prohibition to keep Gaughan from holding a damages trial, but the Justices unanimously denied the petition Nov. 29.

Valley Radiology physician Mark Kenamond took a magnetic resonance image, or MRI, of Bates in 2000.

A month later Bates died. He left three minor sons.

Widow Margaret Bates sued, claiming Valley Radiology failed to diagnose a blood clot in Bates's brain.

Trial began this February.

In jury selection Bates's sons heard potential jurors making derogatory comments about the suit.

Someone said the plaintiffs "better be church goers." Someone said lawsuits like this increased insurance rates.

The sons reported the comments to Gaughan. He privately questioned potential jurors and sent three of them away.

At trial, jurors heard that Bates earned base pay of $57,665. A witness estimated lost income at almost $900,000.

Jurors heard that medical and funeral expenses totaled $158,271.79.

At the close of trial Gaughan said that by agreement of the parties, if jurors found for the plaintiffs they had to award medical and funeral expenses.

Jurors awarded medical and funeral expenses but nothing else.

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

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

At a hearing Gaughan said he believed there was prejudice in the jury, "perhaps not against the family but in favor of the doctor or doctors in general…"

He granted a new trial on damages.

Valley Radiology's appeal argued that the widow waived any post trial relief when she refused Gaughan's offer to send jurors back for further deliberation on damages.

In upholding Gaughan, Justice Joseph Albright wrote that the widow arguably made a legitimate strategy decision.

He wrote, "Given the circumstances surrounding the selection of the jury combined with the verdict reached by the jury, Respondents' counsel had the right to decide that there was little value and, in fact, potential harm in resubmitting the issue of damages to this particular jury."