CHARLESTON - Circuit Judge James Mazzone spoiled an Ohio County medical malpractice trial by approving a prospective juror who blamed malpractice verdicts for high insurance costs, according to the West Virginia Supreme Court of Appeals.

The Justices on Nov. 6 ordered Mazzone to hold a new trial for Laurie Ann Murphy and Shawn Murphy, parents of a son who died. Their decision erased a verdict in favor of physician Dennis Burech and the West Virginia University Board of Governors.

They found fault with Mazzone's action even though the prospective juror, a dentist they identified as Dr. Walter, did not serve on the jury.

Because Mazzone ruled that the Murphys could not strike Walter for bias, the Murphys removed him with a peremptory strike.

Courts allow a certain number of peremptory strikes that require no reason.

If the Murphys had not used a peremptory strike against Walter, they could have used it to remove another prospective juror.

The Murphys sued over the birth of their son on Nov. 26, 2002, at Wheeling Hospital.

A doctor there had tried the previous week to induce labor, without result.

At birth, Shawn Junior lacked sufficient oxygen. Burech tried to resuscitate him and arranged transfer to West Virginia University Hospital.

Shawn Junior stayed alive, but he suffered permanent neurological injuries.

His parents sued Burech, obstetricians Laura Miller and John Battaglino, the Board of Governors and Wheeling Hospital.

Miller, Battaglino and Wheeling Hospital settled the claims against them.

The Murphys took Burech and the Board of Governors to trial.

On a questionnaire for prospective jurors, Walter wrote that he had been a defendant in a frivolous suit that settled out of court.

He wrote that West Virginia "has some of the highest health care insurance rates because of medical malpractice lawsuits and their verdicts."

He wrote that "frivolous lawsuits cost everyone except the attorneys involved."

In chambers, he told Mazzone he didn't know any way to compensate people for pain and suffering.

"We're all human," Walter said. "We all make mistakes."

He said he would try to follow Mazzone's instructions on damages.

That satisfied Mazzonem but it didn't satisfy the Murphys. They moved to strike Walter for bias, and Mazzone denied the motion.

The Murphys appealed. Before the justices could reach a decision, Shawn Junior died.

In awarding a new trial, the justices held that "a trial court must remove a prospective juror who makes a clear statement indicating a prejudice or bias."

A prospective juror who makes such a statement "cannot be rehabilitated by subsequent questioning, later retractions, or promises to be fair," their unsigned opinion stated.

Harry Cohen and Douglas Price of Pittsburgh represented the Murphys.
D. C. Offutt Jr., Charity Flynn and Jon Hoover, all of Offutt and Nord in Huntington, represented Burech.

Amy Smith of Clarksburg, James Wright and Heidi Kossuth of Wheeling, and Nancy DeFeo of Morgantown, all of Steptoe and Johnson, represented the Board of Governors.

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