When a defense lawyer represents his client before not one but two juries — due to a retrial — and he wins two times, that ranks as an impressive accomplishment on its own.

But Bruce A. Griggs, a partner in Austin’s Ogletree Deakins Nash Smoak & Stewart, also faced the pro-David, anti-Goliath aspects of defending a bank against allegations that it had discriminated against a former employee who had suffered a heart attack.

Griggs’ client Compass Bank won a take-nothing final judgment on March 26 in Kim Madere v. Compass Bank in U.S. District Court for the Western District of Texas in Austin.

Griggs says he used the same strategy at both jury trials to overcome the empathy he expected panel members to have for the plaintiff due to her medical condition: He acknowledged the heart attack and its severity and moved on.

"There wasn’t any dispute; she had a heart attack. It’s important not to challenge that and identify what an extraordinarily serious medical procedure she had undergone," he says.

But, Griggs says, he then "divorced the issue of her job performance from the issue of her health."

In an amended complaint filed on Dec. 13, 2010, Kim Madere alleged she was hired to work for an Austin branch of Compass in 2006, suffered the heart attack and took a medical leave in 2007, and was laid off in 2009 in violation of the entitlement and retaliation provisions of the Family Leave Medical Act (FMLA.)

In its answer filed Dec. 29, 2010, Compass denied the allegations and stated as an affirmative defense that it did not deny Madere any right or entitlement under the FMLA.

At the first trial, a jury on Feb. 15, 2012, issued a take-nothing verdict for the defense. But in an order on Oct. 22, 2012, U.S. Magistrate Judge Andrew W. Austin granted Madere’s motion for a retrial based in part on Compass’ failure to provide documents that would have helped her cross-examine a "linchpin" witness for the bank.

At the second trial, held at the University of Texas School of Law so students could watch a live proceeding, a jury issued a take-nothing verdict for the defense on Feb. 26.

With the March 26 final judgment in place, Griggs expresses relief, but he says the case gave him challenges beyond the two juries and the unequal emotional appeal of the litigants: Trying before students was daunting, he says.

His opposing counsel John F. Melton, a partner in Melton & Kumler in Austin, says Griggs "did a really good job" of separating the question of his client’s heart attack and her employment status. Melton declines to comment on whether his client will appeal.

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