Wednesday, November 20, 2013By NICK DIVITO
SYRACUSE, N.Y. (CN) - Near "stalking" by the attorney AIG hired to monitor a dental-malpractice trial "violated the sanctity of the jury" and compels a retrial, a judge ruled.
With the verdict thrown out, Kelly Varano will have another chance to prove that her son, Jeremy Bohn, did not receive proper care from Syracuse dental clinic Small Smiles and its parent company, Forba Holdings.
It's one of 2,900 such lawsuits filed across the nation against the dental chain, which is insured by AIG.
After the jury in Varano's case ruled for the defense last month, its members confided in Judge Deborah Karalunas that they felt they were being "stalked" by a spectator from the trial.
Identifying that man as AIG's Manhattan-based attorney, Scott Greenspan, Karalunas ordered a new trial Monday.
"Mr. Greespan's conduct violated the sanctity of the jury, raises ground for suspicion that the decision was founded on something other than the evidence, and was prejudicial and likely to influence the verdict," Karalunas wrote.
One of the attorneys who filed the underlying lawsuit, Jim Moriarty, told Courthouse News that he was "thrilled" with the decision.
In 40 years practicing law, "I have never seen an attorney go as far out of line as this lawyer did," Moriarty added. "To me it's dumbfounding."
AIG meanwhile played down the decision.
"We feel that the facts do not support the judge's decision to throw out the unanimous defense verdict in this case, and we are confident that this decision will be overturned on appeal," the insurance giant said in a statement.
In her 13-page order, Karalunas said jurors told her that Greenspan was "creepy" and "seedy," and that he was "stalking" them during the trial by following them in the court's elevators, trailing them at lunch and videotaping them.
When one of the jurors asked him in the elevator if he was a reporter, Greenspan declined to answer the question and said was not allowed to talk to the jury, according to the ruling.
During questioning by the judge, Greenspan testified that he had "no client/attorney relationship" with Forba Co., which runs the dental clinics. "I had no instructions whatsoever to talk with the jury or have any interaction with the jury at all."
Forba Holdings and its co-defendants argued that the conversation between Greenspan and the juror was "harmless" and "innocuous because it was the juror who initiated the exchange."
Judge Karalunas was not convinced, however, citing testimony from a juror who told her: "I was very curious because I was sick and tired of him following us," and that Greenspan was "stalking" them.
"The court finds that Mr. Greenspan's conduct went well beyond the conversation in the elevator," Karalunas wrote. "Over the course of a 15-day trial, Mr. Greenspan continuously followed and monitored the jurors when they went to lunch, when they took smoking breaks, and when they rode the elevator."
And even if his conduct doesn't rise to the level of "stalking," Karalunas said the conduct was at least "improper."
Greenspan's "misconduct" was likely to influence the verdict since jurors found him "creepy," were frightened of him, and knew that he "worked for" defendants, the judge added.
Though the defendants said that perception could have worked against them, Karalunas said the jury verdict for the defense is a "stronger indication that the perceived intimidation was successful."
"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," the judge wrote.
The Justice Department settled a claim with New Forba for $24 million. The clinics grew from a single office established by two dents in Pueblo, Colo., in 1995. There were 50 by 2006. Forba is an abbreviation of "For Better Access."