CHARLESTON -– A Huntington attorney tainted Cabell County jurors with personal attacks on an opposing lawyer, the West Virginia Supreme Court of Appeals has decided.
All five Justices on Nov. 13 ordered a new trial in a medical malpractice claim against D.C. Offutt's client, heart surgeon Edward Setser.
"It is doubtful that the trial court could have purged the necessarily prejudicial effects of appellee's improper closing argument on the jury," they wrote in an unsigned opinion.
They wrote that "invective and derogation are outside the bounds of summation."
They formally remanded the case to Circuit Judge John Cummings, but he has retired and the case will pass to Circuit Judge Jane Hustead.
Charleston attorney Marvin Masters represents the estate of Julia Toler, who contracted rheumatic fever as a child and suffered damage to her heart valves.
She underwent surgery in 1980 at age 42. In 1999, the valve again needed repair. Setser started surgery by separating her sternum, and her aorta tore open.
Setser hooked her to a bypass machine and closed the aorta. He didn't lose her, but lack of oxygen damaged her brain. She sued in 2001 and died with the suit pending.
At trial last year, physician Steven Herman testified for the estate that Setser should have performed a chest scan before operating.
He said a scan would have shown inadequate space between the sternum and the aorta.
He said Setser should have either run a bypass from the start or exposed the femoral artery as a potential shortcut to a bypass in the event of complication.
For Setser, physician Karl Krieger testified that an X-ray prior to surgery showed adequate space for the procedure.
He said disruption of scar tissue from the 1980 surgery caused the aorta to tear. He said a CT scan wouldn't have showed scar tissue.
In closing argument, Offutt displayed on a PowerPoint screen a Wizard of Id strip that The Herald-Dispatch newspaper in Huntington had carried a day earlier.
A fortune teller says, "I've made contact with your recently departed Uncle Ned."
A woman says, "You have? What did he say?"
The fortune teller says, "He wants you to sue the doctor."
Offutt said, "This is a reflection of society today."
Masters objected, and Cummings sustained.
Offutt told jurors that if Setser had done what Herman and Masters said he should have done and complications resulted, they would have criticized him.
"No matter which way Dr. Setser goes, he is going to be criticized for doing the wrong thing," he said. "You can take a bad result and turn it into a malpractice case every time."
He told jurors they were fortunate to have doctors such as Setser treating them.
"If we hold them to an infallible standard, they simply can't practice," he said.
"Mr. Masters and his expert, Dr. Herman, will take a bad result and turn it into malpractice every time," the The PowerPoint screen declared. "Dr. Setser can't win."
Jurors departed to deliberate, and Masters moved for mistrial.
Cummings denied the motion. He ruled that although the cartoon exceeded the limits of proper argument, he cured it by sustaining the objection.
On appeal, the Justices decided that Offutt spoiled the trial.
The PowerPoint on Masters and Herman personalized his comments, they wrote.
"In addition to attacking the character and integrity of plaintiff's counsel and her expert medical witness, defense counsel implied that a plaintiff's verdict could end Dr. Setser's ability to practice medicine locally and reduce the availability of quality medical care in the community in which the jury resided," they wrote.
"For the same reasons that derogatory comments and personal attacks on counsel and witnesses are improper, this type of appeal to the jury is similarly not permitted."
They wrote that it was difficult to view the cartoon as anything but an attempt to gain sympathy and prejudice jurors against the plaintiff.