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Med Mal Closing Argument "Channels" Decedent, Sickens Juror and Causes Appeals Court to Order Retrial after Defense Verdict



Montana attorney Steven Harman gave an unusual closing argument in a medical malpractice wrongful death case (Heidt v. Argani - links below) that ultimately resulted in an appellate court reversal of a defense verdict. The attorney "channeled" the dead plaintiff - delivering a first-person narrative describing the death (from a worn out aortic valve) and using phrases such as: "My God, I'm dying," and describing in gruesome detail what it was like in the autopsy. No doubt, Harman was trying to get the jurors' sympathy.

This tactic overwhelmed one juror who announced she thought she was going to pass out. She'd become dizzy and was briefly attended to by two physicians (the defendant herself and one of Mr. Harman's law partners who is also a physician) as well as three nurses (all of whom were jurors). They took her pulse, lowered her head to the ground and called for an ambulance which took her to the hospital. All this took place outside the presence of the other jurors.

Then, an alternate juror was seated and the trial judge discussed these events with the jurors and was satisfied that they would render a verdict based simply on the five days of evidence they had heard. The trial then continued. After Mr. Harman finished his closing argument, the defense closed and then, after two hours of deliberation, the jury rendered a defense verdict.

Harman sought a mistrial claiming that the jurors must have been positively disposed toward the defense after Dr. Argani had helped the excused juror. He did not address the issue (nor did defense counsel) of whether the jurors were positively disposed toward the plaintiff in view of the same assistance rendered to the fallen juror by plaintiff's co-counsel Neel Hammond, M.D.

The trial judge denied the motion but the Montana Supreme Court reversed and this week ordered a new trial. Here are the decision and the parties' briefs.

Now, the case will have to be tried again. Presumably, it will take at least the same five days and involve the testimony of the same seven different physicians and the expenses incurred not only by the parties but also by the court system.

P.S.: Ted Frank noted here at Overlawyered that former presidential candidate John Edwards was a proponent of channeling and that the tactic is unfairly prejudicial and cause for a mistrial.

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Isaac Gorodetski
Project Manager,
Center for Legal Policy at the
Manhattan Institute
igorodetski@manhattan-institute.org

Katherine Lazarski
Press Officer,
Manhattan Institute
klazarski@manhattan-institute.org

 

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.