WILLIAMSON – A circuit judge has granted a new trial to Norfolk Southern Railway Company after it was discovered a Mingo County juror involved in an $800,000 verdict had not disclosed a relationship with one of the plaintiff’s attorneys.

Circuit Judge Joshua Butcher granted NSRC’s order on Feb. 21. His order says juror Floyd Smith had a relationship with attorney Greg “Hootie” Smith that was not disclosed during jury selection or the trial, which took place last year.

In the one-week trial, Randy J. Ray of Pike County, Ky., had received an $800,000 verdict in his case. He had claimed he was not provided a reasonably safe place to work under the Federal Employers’ Liability Act.

Ray claimed he received a permanent back injury in 2012 when he was required to lift a knuckle that weighed more than 80 pounds as part of his job as a car man in the Williamson maintenance shop. Senior Status Judge Thomas Keadle oversaw the 2017 trial.

In his order, Butcher, a Logan Circuit Judge hearing the case by assignment, says NSRC filed a motion on Feb. 16, 2017, seeking post-trial relief from the judgment, claiming it had obtained information showing the relationship between juror Smith and attorney Smith may have been “improperly concealed during the voir dire examination.”

During that jury selection process, plaintiff’s attorney Patrick O’Brien asked potential jurors if any of them had been represented by attorney Smith in any legal matter and if any of them knew attorney Smith. A few of them answered affirmatively, but juror Smith did not.

“Post-trial, NSRC discovered that juror Smith had been identified and disclosed by attorney Smith several months before the trial as a potential witness for him in a separate case that was pending, and remains pending, against attorney Smith in Mingo County,” the order states.

That case is involves the May 2014 primary election in which Lonnie Hannah and “Hootie” Smith were candidates for a seat on the Mingo County Commission. Hannah claims Smith made false and defamatory statements to the West Virginia Secretary of State and the media that wrongfully accused him of election law violations. Attorney Smith disclosed juror Smith as a witness who would testify about the matter in a June 30, 2016, discovery response.

On May 19, NSRC filed a Notice of Appeal with the state Supreme Court regarding the matter. On Aug. 8, it filed the Motion to Set Aside Judgment and for a New Trial.

“NRSC’s Motion is premised on sworn deposition testimony that juror Smith gave in the Hannah v. Smith litigation on May 31, 2017, less than two weeks after the appeal had been filed,” the order states.

“Contrary to his representation during voir dire that he did not know attorney Smith, juror Smith’s deposition confirms not only that he knew attorney Smith at the time that voir dire was conducted in this case, but also that he had a significant and material relationship with attorney Smith dating back to at least May of 2014.”

The order says juror Smith’s son Scott Smith was a candidate for Mingo County magistrate in 2014. In his deposition for the Hannah case, Juror Smith testified that he had been contacted by employees of attorney Smith’s law office and by Smith himself to solicit support for attorney Smith’s commission campaign.

Juror Smith testified that “he reached an agreement with attorney Smith whereby he would support him in his bid for re-election to the Mingo County Commission in exchange for attorney Smith’s support for and assistance with juror Smith’s son’s candidacy for magistrate.”

“I got out and fought for him,” juror Smith said in his deposition regarding attorney Smith’s campaign. “I got out and fought for him, campaigned. … I went door to door all over the county. … Made phone calls.”

Juror Smith said he thinks his work for attorney Smith helped swing the election.

“Did you feel like your efforts supporting Hootie Smith for County Commissioner in May of 2014 made a difference?” Hannah’s attorney Tish Chafin asked him.

“It won Hootie the election,” he responded. “Lonnie would have been County Commissioner today.”

“And why do you say that?” Chafin asked.

“With the votes I changed,” juror Smith replied. “I could have had all of them same votes for (Hannah).”

NRSC says the actions of juror Smith and attorney Smith deprived it of its ability to question juror Smith about his relationship with attorney Smith. It says it also deprived NSRC of its right to a fair trial in the Ray case.

“Due to the extensive relationship existing in the recent past, and maybe even the present, between (juror Smith) and attorney Smith, perhaps he rendered an unfair verdict or participated in deliberations unfairly to influence the verdict either for or even against the plaintiff,” the order states.

“The question of attorney Smith’s participation in the juror misconduct found above turns on the mindset and knowledge of attorney Smith and not that of juror Smith,” the order continues. “More specifically, the question here is not whether juror Smith lied by remaining silent, but whether attorney Smith knew juror Smith lied so that a duty to disclose as much to the court would require such action.

“If attorney Smith was not certain the identity of juror Smith at any point during trial, then perhaps there was nothing to disclose from his perspective.”

Butcher wrote that he was unable to find that attorney Smith violated his duty to the court by remaining silent and failing to disclose his relationship with juror Smith because of the lack of proof that attorney Smith recognized juror Smith during the trial.

“In the presence of such evidence regarding recognition and appreciation of the identity of juror Smith by attorney Smith, this court would not hesitate to find that attorney Smith’s silence and failure to disclose juror Smith’s misconduct violated his duty of candor to the court and damaged the judicial process.”

Butcher granted NSRC’s motion to set aside judgment and for a new trial. Nothing further currently has been scheduled.

The West Virginia Record made numerous attempts to contact attorney Smith for comment.

NSRC is represented by J.H. Mahaney and Matthew Lockhart of Dinsmore & Shohl.

Mingo Circuit Court case number: 14-C-14

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