You just have to wonder. I mean, it is 2009, nearly 2010, and by now everybody has gotten the memo about racial slurs being a no-no, right?
Apparently, not if you’re a juror from Spokane, Washington.
That’s right. Earlier this month a state appeals court found that racially insensitive remarks by jurors justified overturning a defense verdict rendered in a medical malpractice case.
The decision is interesting in two respects.
First, the racial slurs were not directed against a party in the case, but rather the plaintiff’s Japanese-American lawyer.
Moreover, the court seemed to say that that the fact that the remarks were made at all was sufficient to show that the verdict was tainted, even though there was no evidence that racial animus was actually a factor in the jury’s deliberations.
Remember Pearl Harbor!
Darlene Turner lost part of her left foot. She claims that she’d still be stomping around with a whole left foot if it hadn’t been for the negligence of Dr. Nathan Stime.
According to Darlene, Dr. Stime’s failure to timely diagnose her pneumonia led her to develop sepsis. That condition resulted in Darlene suffering through a 45-day stint in the hospital — much of it in a coma — and having her left forefoot amputated.
Darlene hired Mark Douglas Kamitomo to represent her in the medical malpractice case.
Kamitomo is of Japanese ancestry and happened to be the only non-Caucasian involved in the trial.
Kamitomo lined up a couple of experts who testified that Dr. Stime violated the standard of care by failing to obtain an appropriate medical history on Darlene, and by failing to give her an appropriate physical. Kamitomo’s theory of the case was that taking these steps would have led to a timely diagnosis of pneumonia and the prevention of sepsis.
Unfortunately for Darlene, the jury didn’t see it that way and rendered a verdict for Dr. Stime.
That may well have been the end of the matter until Kamitomo heard from two jurors who stated that during deliberations several other jurors had referred to him as “Mr. Kamikaze,” “Mr. Miyashi,” “Mr. Miyagi,” or “Mr. Havacoma.”
One juror also allegedly stated that the defense verdict was “almost appropriate” given that it was delivered on December 7, the anniversary of Japan’s 1941 attack on Pearl Harbor.
Setting aside the verdict
Getting a verdict set aside on the ground of juror misconduct is a particularly tough hill to climb. And in this case Kamitomo had two hurdles to overcome in getting the defense verdict set aside on the ground of racial prejudice.
There was the issue that the jurors’ racially insensitive comments were directed at him rather than at his client.
This aspect of the case garnered the attention of the Washington ACLU and the state chapters of the Women Lawyers, Korean-American, Latino-American, Vietnamese-American, Middle Eastern, Asian and Northwest Indian bar associations.
Each of these groups filed amicus briefs in support of the proposition that racial animus expressed by jurors against a trial attorney may be sufficient evidence to conclude that the verdict was the result of juror misconduct.
The other problem facing Kamitomo was that there was no direct evidence that racial animus was actually a factor in the jury’s deliberations.
In fact, eight jurors submitted affidavits stating that they never referred to Kamitomo in racially derogatory terms, that they had not heard or witnessed anything suggesting bias, and that they had not heard or witnessed anything causing them to believe that any juror’s vote was not based solely on the evidence.
But both the trial judge and the court of appeals seemed to take the stance that the mere fact that racially insensitive comments were made against Darlene’s attorney was sufficient to infer that improper conduct affected the verdict and denied Darlene a fair trial.
The court of appeals was struck by the fact that one or more jurors referred to Kamitomo as “Mr. Havacoma.”
The court reasoned that “[t]his name demonstrates that jurors associated Mr. Kamitomo closely with his client, Ms. Turner, who was in a coma for many of the 45 days of her hospitalization.”
The Pearl Harbor reference also did not go over well with the court.
“[T]he Pearl Harbor comment related to the jury verdict demonstrates that the defense verdict … was closely associated with Mr. Kamitomo,” the court said.
Finally, in concluding that there was a reasonable doubt as to whether the words directed at Kamitomo affected the verdict, the court said that “the very reasons for the attorney-client relationship require a close association between the lawyer and his or her client.” (Turner v. Stime)
Political correctness run amok?
What strikes me about this decision is that the court of appeals makes no mention of the strength of Dr. Stime’s case.
In the absence of direct evidence that the verdict was the result of racial animus, surely the strength of the defendant’s case should have been one factor in deciding whether Darlene was the victim of juror misconduct.
Then there’s the nature of the comments themselves. On the scale of racism, this doesn’t seem to be Ku Klux Klan kind of stuff.
Instead, we’re talking of the sort of bigotry that we might hear from a parent or grandparent.
Sure, they might make us cringe every once in a while with their insensitivity, but we’d still trust them to make the right decision when faced with a serious matter.
So that brings us to the Pandora’s Box argument made by Dr. Stime in his attempt to have the jury’s verdict reinstated in this case.
Might the Washington Court of Appeals’ decision encourage litigants to debrief jurors for flippant and insensitive remarks that can be recast as ethnic slurs that would justify overturning a verdict?
In my mind it will so long as courts don’t also demand some concrete showing that racial animus actually infected the deliberative process.
— Pat Murphy
Check out the Circuit Blitz on Twitter!
The Blitz is a daily review of the noteworthy decisions issued by the U.S. Circuit Courts of Appeals.
To follow the Blitz, go to: