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A juror’s alleged admission that he researched a defendant’s financial condition on the Internet prior to deliberations that resulted in a verdict of nearly $2 million is not grounds for ordering a new trial since the information would have been admissible at trial, a federal judge has ruled. “It is this court’s finding that no prejudice could have resulted from a juror’s exposure to the defendants’ Web sites,” Senior U.S. District Judge Clarence C. Newcomer of the Eastern District of Pennsylvania wrote in his 20-page opinion in CGB Occupational Therapy Inc. v. RHA/Pennsylvania Nursing Homes Inc. “While the juror never should have disobeyed this court’s constant admonishments not to conduct independent research pertaining to the case, the material published on the defendant [Sunrise Assisted Living Inc.'s] Web sites would have been admissible at trial anyway,” Newcomer wrote. In a strongly worded opinion, Newcomer rejected several other arguments made by Sunrise’s lawyer, Melissa Lang of Philadelphia-based Harvey, Pennington, Cabot, Griffith & Renneisen, often criticizing Lang for making frivolous arguments or misstating the law. In its verdict, the jury on Wednesday awarded nearly $2 million to CGB, a Delaware County, Pa., occupational therapy firm, after finding that Sunrise, a Virginia nursing home management company, had induced two Philadelphia-area nursing homes to breach their contracts by firing the therapy firm and then hiring away five of its therapists. After a three-day trial, the jury awarded $685,000 in compensatory damages and $1.3 million in punitive damages. The jury found that Sunrise Assisted Living Inc. of McLean, Va. — which operates more than 200 assisted living communities in 23 states — had tortiously interfered with CGB’s contracts with RHA/Pennsylvania Nursing Homes Inc. The jury then found that Sunrise had also interfered with CGB’s contracts with its own therapists by inducing RHA to hire five therapists despite promises in RHA’s contract with CGB that in the event of a termination of the contract, it would not employ any CGB therapist for at least one year. By finding against Sunrise, the jury flatly rejected the company’s main defense — that it never should have been named in the suit because it had no contractual relationship with CGB. For both claims, the jury found liability for both Sunrise Assisted Living Inc. and Sunrise Assisted Living Management Inc. The verdict was a victory for attorney David G. Concannon, who represented CGB and its owner, Cindy G. Brillman. According to court papers, CGB contracted in 1995 to provide physical, occupational and speech therapy services for West Chester Arms Nursing and Rehabilitation Center, which was later renamed Pembrooke Nursing Rehabilitation Residence. In October 1996, CGB entered into a similar contract with Prospect Park Rehabilitation Center. In both contracts, the nursing homes promised that if the contract was terminated, they would not hire any CGB therapist for at least one year, court papers say. Both Pembrooke and Prospect Park are owned by RHA. The suit originally named RHA as a defendant and alleged that it illegally withheld more than $300,000 in payments to CGB despite receiving Medicare reimbursements for all of CGB’s services. Brillman testified at trial that when she began complaining about the long delays in getting paid, the two nursing homes retaliated by terminating her contracts. Lang told the jury there was a perfectly innocent explanation for the termination of the contracts — recent changes in Medicare laws. But Concannon told the jury that under the contracts, CGB should have been given 90 days to solve any problems that arose. The evidence, he said, showed that Brillman was ousted with no warning at all. Concannon also told the jury that a Sunrise employee, Marjorie Tomes, who served as administrator of the Prospect Park home, had called all CGB therapists, assistants and aides into her office and told them that as of Sept. 30, 1998, CGB would no longer provide services at Prospect Park and Pembrooke. Tomes then asked the CGB therapists, assistants and aides whether any of them wished to work for the company that would be taking over the contracts, Concannon said. According to trial testimony, five therapists agreed to take positions with the new company. In her motion for judgment notwithstanding the verdict, Lang argued that CGB is precluded from collecting from Sunrise because it was merely acting as an agent of RHA and was, therefore, immune from suit. She also argued that CGB never met the elements of proving a tortious interference claim. Newcomer flatly rejected the argument, saying, “This court is distressed, to say the least, by the defendants’ erroneous representations of Pennsylvania law.” Newcomer found that the cases cited by Lang “stand for the proposition that an agent may or may not be liable for fulfillment of contractual provisions depending on whether disclosures were made concerning the agent relationship.” Such case law didn’t support Lang’s motion, Newcomer found, because “these cases bear no relevance to the situation at hand where an agent tortiously interfered with a contract.” Newcomer found that Lang “represented that these cases stand for a completely different proposition than they actually do.” Quickly dispensing with Lang’s argument that punitive damages were improperly awarded, Newcomer found that “sufficient evidence was adduced at trial showing the defendants’ conduct to be outrageous and done intentionally with callous disregard of the plaintiff.” Lang incurred even harsher criticism for her argument that Sunrise was prejudiced by testimony concerning insurance coverage. Newcomer found the argument “preposterous.” “The defendants misled this court to believe that the jury actually heard testimony concerning their insurance coverage,” Newcomer wrote. “In reality,” Newcomer said, the only testimony elicited on this topic consisted of a single statement made by CGB’s owner, Brillman, when she was asked about conversations with the defendant corporations before filing her complaint. Brillman testified: “I was asking — I hope it was before; it’s hard to tell what was before and after the complaint — about insurances.” Newcomer found that immediately after Brillman made the remarks, Lang objected and the court sustained the objection. “Certainly, no prejudice could have resulted from this testimony,” Newcomer wrote. “A mistrial is not warranted when a witness merely utters the word ‘insurance’ in open court. If this were the case, witnesses could easily bring the wheels of justice to a grinding halt merely by speaking a single word during their testimony,” Newcomer wrote. And since Brillman never indicated whether the defendants even had insurance, Newcomer concluded that “under a worst-case scenario, the jury entered deliberations knowing that Ms. Brillman inquired as to whether or not they had insurance.” Lang also complained that she was barred from cross-examining a plaintiff’s witness about the “impacts of his alcoholism on his ability to recall events that are now four years old.” The same witness, Lang said, was also potentially biased against Sunrise because he is a disgruntled former employee of defendant RHA. But Newcomer found that Lang’s attempt to impeach the witness’s memory by eliciting the fact that he had a drinking problem “became irrelevant when the witness agreed with defense counsel that his memory may be mistaken.” Throughout his cross-examination, Newcomer said, the witness “consistently answered defense counsel’s questions by acknowledging that his memory may be mistaken. Therefore, the impeachment value of his alleged drinking problem became superfluous.” On the issue of the witness’s possible bias, Newcomer found that bias against RHA could not be imputed to Sunrise. “While the [Sunrise] defendants are correct in pointing out that he may have a motive to bring harm to RHA, there is no reason to believe that the witness would be inclined to falsify testimony to implicate either of the [Sunrise] defendants. Therefore, the defendants’ proposed impeachment on this point amounts to little more than an effort to confuse the jury and was, therefore, properly excluded,” Newcomer wrote.

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