Trials & Litigation

Med-Mal Closing Sickens Juror, Spurring Defendant’s Help and New Trial

Updated: An emotional closing argument by the lawyer for a medical malpractice plaintiff ended up showcasing the defendant physician’s skills, leading the Montana Supreme Court to order a new trial.

The court ruled Friday in the case of medical malpractice plaintiff Amy Heidt, who was seeking damages in an October 2008 trial for the death of her husband, the Associated Press reports.

The defendant physician, Dr. Faranak Argani, helped attend to a juror who fell ill after listening to the closing by Heidt’s lawyer, according to the opinion. Lawyer Steven Harman of Billings spoke as though he were “channeling” Heidt’s husband, describing his possible thoughts as he died and during his autopsy.

“This got to be more than some could bear,” the Montana Supreme Court recounted. “One of the jurors announced that she was ‘not OK’ and that she thought she was going to pass out.” The judge called a recess, and Argani helped attend to the juror, along with the plaintiff’s co-counsel, who was also a physician, and three jurors who were nurses.

“It turns out the juror who fainted, or nearly fainted, had a heart condition similar to the decedent and identified very strongly with him,” Harman told the ABA Journal.

The trial judge denied a mistrial motion, but the Montana Supreme Court disagreed. The “extraordinary events” require a new trial, the state high court said.

Harman told the ABA Journal the decision is only the third published opinion granting a new trial in circumstances where a juror was assisted by a defendant. The supreme courts of Illinois and New York also granted new trials in opinions in 1986 and 1989, he said.

Harman said the closing argument was the first time he tried “channeling” the likely thoughts of a decedent, and he hasn’t had occasion to use the technique again. But that doesn’t mean he won’t.

“These types of arguments can be very effective,” he said. The only possible objection to a “channeling” argument, he learned in his legal research, is that it could inflame the passion and prejudice of the jury. “But in my opinion, that’s what good closing argument for a good trial lawyer is about,” Harman said.

He adds that he didn’t invent the channeling technique. The law firm of well-known trial lawyer Gerry Spence “is famous for doing it,” Harman told the Journal.

Hat tip to the Legal Profession Blog.

Updated at 10:20 a.m. to include Harman’s comments.

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