WILLIAMSON – A new trial date has been set for a lawsuit against Norfolk Southern Railway Company after a judge tossed a previous $800,000 verdict when it was discovered that one of the attorneys and a juror knew each other.
A motion to set aside the judgment was filed in August and a circuit judge granted the motion on Feb. 21. The new trial is scheduled to begin Dec. 3.
Circuit Judge Joshua Butcher wrote in his order that 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.
The order stated that Norfolk claimed it had obtained information showing the relationship between Floyd Smith and Greg Smith and that it 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 Greg Smith in any legal matter and if any of them knew Greg Smith. A few of them answered affirmatively, but Floyd 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 involves the May 2014 primary election in which Lonnie Hannah and Greg Smith were candidates for a seat on the Mingo County Commission.
Hannah claims Greg Smith made false and defamatory statements to the West Virginia Secretary of State and the media that wrongfully accused him of election law violations. Greg Smith disclosed Floyd Smith as a witness who would testify about the matter in a June 30, 2016, discovery response.
Last May, Norfolk filed a notice of appeal to the West Virginia Supreme Court of Appeals. Norfolk then filed the motion to set aside judgment 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 Floyd Smith’s son Scott Smith was a candidate for Mingo County magistrate in 2014. In his deposition for the Hannah case, Floyd Smith testified that he had been contacted by employees of Greg Smith’s law office and by Greg Smith himself to solicit support for Greg Smith’s commission campaign.
Norfolk claimed Floyd Smith’s actions deprived it of its right to a fair trial in the Ray case.
In his order, Circuit Judge Joshua Butcher wrote that the question of Greg Smith’s participation in the juror misconduct turns on the mindset and knowledge of Greg Smith and not that of Floyd Smith.
“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,” Butcher wrote. “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 Greg 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.
Mingo Circuit Court case number: 14-C-14