An attorney with one of Florida’s largest insurance defense firms must pay more than $100,000 in sanctions after deliberately trying to sabotage a medical malpractice suit in order to win a mistrial, a Florida appeals court has decided.
The 6th District Court of Appeal upheld an Orlando circuit judge’s 2021 sanctions ruling against Jennings Hurt, a shareholder with Rissman, Barrett, Hurt, Donahue, McLain & Mangan, a 50-year-old firm with more than 100 lawyers in liability and workers’ compensation defense.
The lower court did not abuse its discretion or violate due process in sanctioning Hurt, the appeals court said in its May 12 opinion. The sanctions should help cover the plaintiff’s legal fees, deposition transcript fees, and the cost of expert witnesses who may have to testify again after a mistrial was declared, according to court documents.
The lawyer’s actions were so egregious, and in apparent violation of several Florida Bar rules, that they could lead to disciplinary action by the Bar or even suspension of his law license, said Robert Jarvis, a professor of law at Nova Southeastern University and the co-author of a guidebook on attorney ethics.
The case has been in the courts for almost two decades. Laurie Johnson was admitted to Orlando Regional Medical Center in 2004 after an apparent severe reaction to medication. But doctors and nurses there failed to properly diagnose and treat her condition, causing complications, the original lawsuit complaint said.
At the trial in 2008, Hurt, known as “Bucky,” told the trial judge that co-counsel Richard Womble, also with the Rissman firm, had made a terrible mistake in allowing certain admissions by hospital officials to be read to the jury and that some key information had been overlooked. The officials had admitted that Johnson had developed sepsis in the hospital and that may have contributed to her neuropathy.
Hurt argued to the trial judge that he had no idea that those responses existed, and that the hospital officials were “shocked” about them coming up in court. He asked that the statements be withdrawn or that a mistrial be declared. The court denied the request.
The plaintiff’s attorney, Victor Womack, argued that Hurt had known all along about the admissions and so had hospital staff, and no one had objected to their being admitted into evidence. Hurt also said at a hearing that allowing the information was not incurable, although he had claimed at trial that it was.
“‘I might have made that statement to the judge in an effort to persuade her to rule in my favor on that,'” Womack’s motion quoted Hurt as saying, based on the transcript of the proceedings.
That was an admission by Hurt that he purposely misrepresented matters to the court, the plaintiff’s attorney said. He suggested that the defense team may have been motivated by the belief that their case was in trouble, they had no expert witnesses to testify on causation, and were looking for a way out.
The circuit judge, Julie O’Kane, chastised Hurt for making arguments about medical causation that differed from the hospital’s admissions – in direct violation of the judge’s orders. Hurt also repeatedly violated the judge’s orders by showing Power Point slides about other causes of Johnson’s complications, showing attractive photographs of defense witnesses, and flashing the names of other doctors who had already been dismissed from the lawsuit.
It was all an effort by Hurt, Rissman’s most experienced jury-trial lawyer, to push the reset button on a lost cause, the judge and the plaintiff’s attorney said.
“It is very clear that Mr. Hurt intended to sabotage the trial after the court denied his request to withdraw his clients’ responses to Mrs. Johnson’s requests for admissions…” O’Kane wrote in 2018 in ordering a new trial and sanctions. “Under these circumstances, the court concludes that Mr. Hurt’s conduct was willful, intentional and done in bad faith.”
That should lead to a license suspension or revocation, said Jarvis, the law professor.
“Clearly it is not appropriate for a lawyer to sabotage a trial or work to obtain a mistrial,” and such actions breach a number of bar rules, Jarvis said.
The fact that Hurt met with his hospital clients and they agreed to overlook the alleged mistake is also quite perplexing, the professor noted. “I should point out that many attorneys caught in this situation would have insisted on withdrawing even if their clients were willing to let them stay in,” he said.
Hurt did not respond to a request for comment on the appeals court ruling upholding the sanctions. Rissman attorney Richard Mangan, who represented Hurt in part of the court proceedings, said that because a second trial is pending, the firm should not comment. He did note that it’s possible that the sanctions order against Hurt can be appealed to the Florida Supreme Court.
In a memorandum to the court, Mangan argued that Hurt’s actions did not rise to the level of fraud upon the court and that the court did not rely on Hurt’s statements to rule against the plaintiff in the case.
“There was no fraud on the court and there was no harm to the plaintiff,” Mangan’s memorandum reads.
The plaintiff’s attorney, Womack, said he has other cases pending with the Rissman firm and he declined to talk about the specifics of the case. He noted, though, that he had done insurance defense work for 30 years before switching to the plaintiff side.
“Things have changed and the defense strategy has certainly changed,” he said in an email.
Womack and the courts did not indicate how often defense lawyers in recent years have utilized a similar mistrial strategy or have deliberately violated judges’ orders. The trial judge’s decision, though, cited a 2012 appeals court decision in which the court said it had admonished other lawyers in at least three cases for making improper arguments and not following instructions. Hurt was the attorney at issue in one of those cases.
The amount of sanctions levied against Hurt in the Johnson case are less than half of what Womack had asked for, but still a very significant amount, other Florida attorneys said.
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