Rosewood moves to set aside trial citing juror bias

Hylla

Attorneys haggled more than three hours Monday over charges of juror bias and judicial error during a hearing over Rosewood Care Center's motion for a new trial in a negligence case.

Among other things, defense attorney Dennis McCubbin cited advertising by juror Ray Alexander, a plaintiff attorney with Brown & Crouppen in St. Louis., as grounds for setting aside a $150,000 verdict rendered in April in Madison County against the Edwardsville nursing home.

McCubbin also claims Alexander was overheard congratulating plaintiff attorney Robert Gregory immediately after the verdict was read.

Gregory, representing plaintiff Paul Graves and the estate of Paul Graves' father, Alfred, countered that the verdict was rendered fairly and that juror Alexander had been candid about his profession.

Circuit Judge David Hylla interrupted both attorneys, asking for clarification on certain arguments and explaining some of the past points of the case that he said were necessary for his consideration of McCubbin's motion.

Paul Graves' negligence suit against Rosewood has already been tried twice. The first case ended in a mistrial in 2007. The second trial ended with a verdict for Groves April 24.

Paul Graves contended that Rosewood was negligent in caring for Alfred Graves during a January 2003 stay at the facility. On the first day of his stay, Alfred Graves fell and broke his hip. Paul Graves claimed that the nursing home violated its own procedures and did not give his father adequate care.

McCubbin's motion for setting aside the verdict covered what he called evidentiary errors Hylla made in allowing evidence of Rosewood's policies versus state law, not excluding certain evidence and allowing Gregory to make what McCubbin called a "bad-faith" line of questioning during the trial.

What McCubbin took most issue with was Alexander's conduct.

He attached printouts of Alexander's Web site, listing a biography that he claimed showed Alexander's anti-defendant bias.

Alexander's firm, Brown & Crouppen, specializes in personal injury claims and advertises widely in the St. Louis market, including Madison County.

A reporter for the Madison County Record read both McCubbin's motion and the original site with the posting, http://www.missouri-injury-lawyers.net/ray_alexander.html, comparing the texts Monday. The quotations are identical.

The Web site is a site featuring profiles of Missouri and Illinois personal injury lawyers and firms.

In the quotations, Alexander writes that his first seven years of practicing law were spent defending medical providers accused of injuring their patients, until he changed sides.

"I decided I was tired of helping the guilty. I was on the wrong side," the quote in the motion reads. "It is truly more enjoyable. It is a tremendous advantage to have learned the ropes by defending doctors. I can usually predict what the defense is going to do before they do it."

McCubbin argued that Alexander misrepresented his interest in the case to the court for economic reasons and that he could not be impartial.

McCubbin pointed to an affidavit of one of his fellow attorneys who claims to have overheard Alexander tell Gregory, "Congratulations, Bob. I'll call you later," immediately after the verdict as well as that the jury foreperson, Perha Ramsey, wanted to award the plaintiff "a million dollars."

"I think it's completely outrageous that Mr. Alexander sat here in this courtroom and said he could be a fair and unbiased person," McCubbin said.

Gregory countered that Alexander had been candid about his current and past employers. McCubbin agreed when Gregory pointed out that he did not have a prior relationship with Alexander.

Hylla joined in the conversation, pointing out that Alexander's statements were taken from an advertisement on the Web site.

"I have no proof those were his true feelings," Hylla said of the quotations. "I don't know if an advertisement rises to the same level as his sworn testimony. I don't know who put the ad together."

Gregory pointed out that both the Missouri and Illinois Bar Associations allow the kind of law firm advertising that the Web site and its content fall under.

McCubbin continued to stress what he perceived as Alexander's bias against Rosewood.

"Mr. Alexander is obviously biased," he told Hylla. "That should bother this court."

Arguments continued over other parts of McCubbin's motion until after the end of business at the courthouse.

Hylla told both attorneys to prepare proposed orders to be ready within 30 days. Hylla declined to take up Gregory's motion for attorneys' fees at the Monday hearing.

He asked McCubbin and Gregory to discuss a date for a hearing on the matter and on a to-be-filed defense motion asking for discovery on the fees question.

"I will read everything," Hylla told the attorneys regarding the new trial move.

Hylla presided over both trials.

The case is Madison case number 03-L-1166.

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