The fact that an insurance company lawyer closely monitored the movements of jurors during a malpractice case prompted a judge in Syracuse to reject the jury’s verdict in favor of the defendant as the product of intimidation.
Supreme Court Justice Deborah Karalunas (See Profile) in Onondaga County said Scott Greenspan of Sedgwick “violated the sanctity of the jury” when, over the course of a 15-day trial, he “continuously followed and monitored the jurors when they went to lunch, when they took smoking breaks and when they rode the elevator.”
Karalunas said even “without characterizing the behavior as stalking”—as the jurors did—Greenspan’s conduct constituted misconduct.
Greenspan does not represent a party in the case.
“This is not a matter of an isolated elevator conversation, cake for juror appreciation day or expressions of condolence,” Karalunas wrote, citing examples of juror contact that were not found to be improper. “This is a case where jurors over a 15-day period believed that they were stalked, videotaped and closely monitored by a person they believed worked for defendants. This is a case where jurors performing their civic duty were made to feel bothered and scared. This is a case where the administration of the law was imperiled.”
Varano v. Forba, 2011-2128, was the first of 32 cases involving Small Smiles Dentistry to go to trial.
The case was filed on behalf of a boy who was subjected to dental procedures ranging from fillings and extractions to root canals, often without anesthesia and occasionally under restraint, when he was three and four years old, according to the complaint.
Forba Holding, which runs several Small Smiles clinics but is now in bankruptcy, settled a federal False Claims Act case in 2010 for $24 million for performing unneeded dental procedures on children to collect Medicaid benefits. It is facing dozens of lawsuits and the Varano case was to first to reach a jury.
The six-member jury delivered its unanimous verdict for the defendants on Oct. 9. After the jurors announced their verdict, Karalunas visited the jurors to thank them for their service and ask if they had any questions, which the judge said is her normal practice.
“The first question the jurors asked me was whether they did a good job,” Karalunas wrote. “The second question the jurors asked me was who was the individual who was stalking them throughout the trial.”
Karalunas said the jurors eventually described the “stalker” as Greenspan, whom she then confronted in open court and in the presence of all parties.
“The jurors described for me their interactions with you, Mr. Greenspan,” Karalunas said, according to a portion of a transcript inserted in her decision. “They used the word you were creepy, that you were very seedy, that you were in the elevator with them frequently, that you followed them to various places where they had lunch…that you were waiting in the lobby of the court[house] and got into the elevator with them… They described that you would follow them where they went to lunch, and at one point they ducked into a restaurant and observed out the window that you were panicking because you couldn’t see them.”
One juror testified to having seen Greenspan speaking with defense counsel and two defendants and assumed he was working for the defense. The juror shared the observation with the other jurors. A juror also said he or she confronted Greenspan in the elevator, asking him who he was and why he was tailing the jury, but Greenspan said he was not allowed to speak to the jury.
Greenspan, according to the decision, told the court that he is partner at Sedgwick in New York and counsel for the National Union Fire Insurance Co., which insures Forba. He said that AIG Claims Inc., the claims representative of National Union, asked him to monitor the trial.
“I had no instructions whatsoever to talk with the jury or have any interaction with the jury at all,” Greenspan testified, according to the decision. “I have been doing this for 18 years…and no client would be worth interfering with a jury.”
Regardless, Karalunas said Greenspan rejected the defense’s claim that if the misconduct prejudiced anyone, it was the defense. The defense reasoned that since the jurors presumed Greenspan was working for the defendants, it is the defense, not the plaintiff, they would punish with their verdict.
Karalunas pointed out, however, that the defendants prevailed.
“The jury verdict for the defense is a stronger indication that the perceived intimidation was successful,” Karalunas wrote. “The jurors perceived that a ‘creepy’ man was following them, and one juror said he/she felt scared. The jury also believed that their stalker worked for the defendants. By returning a verdict in favor of the defendants, the jury could be assured that their stalker would be satisfied.”
Patrick Higgins of Powers & Santola in Albany, representing the plaintiff, said “the whole thing was very disturbing. I just think the judge’s decision is well reasoned and based on sound precedent. We are looking forward to getting back in the courtroom.”
Greenspan was not immediately available for comment.
Kevin Hulslander of Smith, Sovik, Kendrick & Sugnet in Syracuse represents Forba. The individual dentist defendants are represented by Theresa Marangas of Wilson, Elser, Moskowitz, Edelman & Dicker in Albany.
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