Ketchum

CHARLESTON – State Supreme Court Justices granted the city of Wheeling a new trial in an age discrimination case because a juror failed to disclose that she had sued her employer.

Three Justices affirmed Ohio Circuit Judge Martin Gaughan on Jan. 19, finding he correctly set aside a verdict awarding $100,384.26 to Albert Postlewait Jr.

Gaughan ruled that while juror Cindi Greathouse didn't intentionally mislead the court, her presence on the jury prejudiced the city.

Chief Justice Menis Ketchum and Justices Thomas McHugh and Brent Benjamin found that the case fell squarely into the realm of judicial discretion.

"The circuit court was able to question Ms. Greathouse and assess her demeanor and veracity, and to balance the effect of Ms. Greathouse's answers upon the city's ability to obtain a fair trial," Ketchum wrote. "Upon the record presented, we believe that the circuit court did not abuse its discretion in awarding the city a new trial."

Dissenting Justices Robin Davis and Margaret Workman found nothing in the record showing Greathouse intended to withhold information.

"In fact, the juror thought she had provided all of the necessary information, and the city's counsel failed to follow up or to demonstrate how a different response by the juror would have provided a valid basis to sustain a challenge for cause or show that the juror was actually biased," Davis wrote.

Postlewait applied for a job as a mechanic in 2005, at age 55, and achieved the highest score on the application test. The city hired an 18 year old.

Postlewait sued, and Gaughan brought the case to trial in 2010.

Lawyers asked prospective jurors if they had ever filed a lawsuit or participated in a civil or criminal case.

Greathouse said she had "a worker's comp issue" that was settled out of court.

She and other jurors heard testimony and awarded Postlewait $99,164.98 in lost retirement benefits and $1,219.28 for emotional distress.

The city moved for a new trial, claiming Greathouse filed a deliberate intent suit against Swisher International, a tobacco company, in 1996.

In West Virginia, a deliberate intent action counts as the only exception allowing a worker to sue an employer instead of filing for worker's compensation.

The city argued that her failure to provide complete information prejudiced its ability to strike her for cause or exercise a peremptory challenge.

Gaughan questioned Greathouse and granted a new trial, finding that complete information would have been vital to the city.

Postlewait appealed, causing a rare 3-2 split at the Supreme Court of Appeals.

"It is not juror Greathouse's fault that counsel for the city failed to follow up on this issue," Davis wrote. "The city of Wheeling had both the opportunity and the obligation to determine whether juror Greathouse's previous worker's compensation claim was limited to an event irrelevant to the present proceedings, or whether the claim was such that it could impact the city's ability to obtain a fair and impartial trial."

Barbara Arnold, of MacCorkle Lavender and Sweeney in Charleston, represented Wheeling. Ronald Kasserman, of Kasserman Law Offices in wheeling, represented Postlewait.

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