December 17, 2009 in City

Appeals court backs judge’s decision on jury remarks

By The Spokesman-Review
 

A Spokane judge was correct to throw out a jury verdict in a medical malpractice case after he learned jurors had made racially derogatory comments about the Japanese heritage of an attorney, the state Court of Appeals has ruled.

The appeals court ruled that the comments made by jurors – who referred to the plaintiff’s attorney as “Mr. Kamikaze,” “Mr. Miyagi” and other names – provided “reasonable doubt” that they’d rendered a fair verdict.

The jurors had found against a couple who sued their doctor for malpractice; after the comments came to light and former Superior Court Judge Robert Austin ordered a new trial, the doctor appealed.

The case drew statewide attention, and organizations including the American Civil Liberties Union and several minority legal groups filed arguments in support of a new trial.

“I’m pleased with the court’s decision,” said Shaakirah Sanders, a Seattle attorney with The Defender Association who authored a friend-of-the-court brief in the case. “I think the court made it clear that these types of comments have no place in our system of justice.”

Mark Kamitomo, the attorney who was the target of the comments, said it’s important for courts to weigh carefully the implications of such remarks and to consider whether they affect jury decisions.

“Most important, I’m very happy for my clients,” he said.

Kamitomo represented Darlene and Bill Turner in their malpractice suit against Dr. Nathan Stime and Riverside Medical Clinic. The Turners alleged that Stime failed to properly diagnose pneumonia in Darlene Turner, who wound up hospitalized in a coma for 45 days with sepsis, and who lost part of her foot. A pulmonologist testified that Stime violated the “standard of care” in several ways during two appointments in March 2004, the appeals court ruling said.

But the jury ruled in the doctor’s favor in December 2007. A juror came forward afterward and told the judge about the comments made about Kamitomo by five jurors during deliberations. These included calling him “Mr. Kamikaze,” “Mr. Miyashi,” “Mr. Havacoma,” and “Mr. Miyagi” – a reference to a character in “The Karate Kid.”

One juror said that it was “almost appropriate” that the verdict against Kamitomo’s clients was returned on Dec. 7, the anniversary of the Pearl Harbor attack.

Other jurors confirmed the account, and Austin ordered a new trial in 2008.

Stime, through attorney Mary Spillane, argued that the terms were not inherently derogatory, and that the words “kamikaze” and “miyashi” are complimentary, according to court records.

The three appeals court judges disagreed, writing that the lower court “properly granted a new trial when it determined there was sufficient misconduct to establish a reasonable doubt that the improper conduct affected the verdict and denied the Turners a fair trial.”

Spillane did not return a call seeking comment Thursday. Stime could appeal to the state Supreme Court; if he doesn’t, a new trial will be scheduled.


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