Judge's 'bizarre and disturbing behavior' entitles med-mal plaintiffs to new trial, La. justice says

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The Louisiana Supreme Court has ruled two medical malpractice plaintiffs are entitled to a new trial because the trial judge’s behavior created a miscarriage of justice.

The court’s per curiam opinion didn’t elaborate on the trial judge’s alleged behavior, but a concurrence by Chief Justice Bernette Johnson had details, the Legal Profession Blog reports. The blog links to the May 27 decision (PDF).

“In my view,” Johnson said, “Judge [Timothy] Ellender engaged in bizarre and disturbing behavior during the jury trial of this matter such that the jury’s verdict cannot be allowed to stand.”

The plaintiffs had alleged Ellender “roamed around the entirety of the courtroom” during trial and looked out of the windows while the plaintiffs’ lawyer was examining witnesses, Johnson said. At one point, Ellender sat in the jury box with jurors during witness testimony and ate candy, according to Johnson’s concurrence.

Ellender took differing approaches to medical experts in the case, Johnson said. He greeted the medical expert for the defense “with a handshake and embrace in front of the jury.” But after testimony by the plaintiffs’ medical expert, Ellender took it upon himself to question the plaintiffs’ lawyer in front of the jury about costs paid to the expert.

“Judge Ellender’s insidious actions of leaving the bench, wandering around the courtroom, looking out the windows, eating candy and otherwise failing to pay attention to the proceedings communicated to the jury in a non-verbal way his opinion that the trial was not serious and could be treated as a joke,” Johnson said.

Johnson noted that Ellender had twice been disciplined by the court. In one instance he was suspended for 30 days for failing to treat seriously a pro se petitioner’s application for an order of protection. In another he was suspended for a year, with six months conditionally deferred, for appearing in blackface at a Halloween party wearing a prison jumpsuit.

Three justices filed separate dissents, but all said there was insufficient proof that the trial judge had acted as alleged. The lawyers in the case said they didn’t witness much of the judge’s alleged behavior because he was behind them in the large courtroom, Justice Scott Crichton said in his dissent. The plaintiffs’ counsel made no objections to the behavior during trial, and the allegations are based on an affidavit by a single juror who served as foreperson.

“Plaintiffs’ counsel has also offered little explanation,” Crichton wrote, “why he did not issue subpoenas or compel testimony of others who were in the courtroom during trial to testify regarding the judge’s behavior (such as the bailiff, deputy clerk of court, court reporter, or even Judge Ellender.)”

The decision is a victory for plaintiff Richard Logan, who alleges his liver was damaged by leaking bile as a result of malpractice by a surgeon during gallbladder surgery, the Daily Comet reports. Logan’s wife was also a plaintiff.

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