The latest New York Law Journal has an amazing story about misconduct by an insurance company lawyer in a Syracuse dental malpractice case.

It’s a chilling true story that will shake up lawyers and citizens eligible for jury duty alike.

Here are the stunning details, according to the Journal:

State Supreme Court Justice Deborah Karalunas in Onondaga County rejected a six-person jury’s verdict in favor of the defendant, citing jury intimidation.

Here’s why: The judge said Scott Greenspan, a lawyer monitoring the trial for the insurance company defendant in the case, “violated the sanctity of the jury” during the 15-day trial because he “continuously followed and monitored the jurors when they went to lunch, when they took smoking breaks and when they rode the elevator.”

The case, Varano vs. Forba, is the first of 32 cases to go to trial involving Small Smiles Dentistry. According to the complaint, a boy, when he was 3 and 4 years old, was forced to endure dental procedures from fillings and extractions to root canals, usually without anesthesia and restrained at times.

The judge learned of the misconduct shortly after the unanimous verdict was read on Oct. 9.

The judge was thanking the jurors and asking if they had any questions, and one of the questions that came up was, who was stalking them throughout the trial?

The jurors identified Greenspan and the judge confronted him in open court. According to the court record, she said:

“The jurors described for me their interactions with you, Mr. Greenspan. They used the word you were creepy, that you were very seedy, that you were in the elevator with them frequently, that you followed them to various places where they had lunch. … Without characterizing the behavior as stalking,” she said, Greenspan’s conduct was considered misconduct.

Greenspan does not directly represent a party in the case. Forba Holding, parent company of several Small Smiles clinics but is now in bankruptcy, settled a $24 million federal claim in 2010 for performing unnecessary procedures on children to receive Medicaid benefits. Greenspan, a partner at Sedgwick in New York, is counsel for the National Union Fire Insurance Co., Forba’s insurer. He said he was asked to monitor the trial by AIG Claims, National Union’s claims representative.

The judge added:

“This is not a matter of an isolated elevator conversation, cake for juror appreciation day or expressions of condolence. This is a case where jurors over a 15-day period believed they were stalked, videotaped and closely monitored by a person they believed worked for defendants. This is a case where jurors performing their civic duty were made to feel bothered and scared. …”

Greenspan told the judge: “I had no instructions whatsoever to talk with the jury or have any interaction with the jury at all. I have been doing this for 18 years … and no client would be worth interfering with a jury.”

The defense claimed that if the misconduct prejudiced the jury at all, it would have been against the defense.

But the judge said: “The jury verdict for the defense is a stronger indication that the perceived intimidation was successful. The jurors perceived that a ‘creepy’ man was following them, and one juror said he/she felt scared. The jury also believed that their stalker worked for the defendants. By returning a verdict in favor of the defendant, the jury could be assured that their stalker would be satisfied.”

The plaintiff’s lawyer, Patrick Higgins, said, “The whole thing was very disturbing. I just think the judge’s decision is well-reasoned and based on sound precedent. We are looking forward to getting back in the courtroom.”

This is one of the most disturbing accounts from a trial that I have ever read.  If there is one thing all lawyers should agree upon, it is that jurors are to be treated with the utmost respect. Our system of law simply cannot function in any other way.

Attorney Patrick Higgins is a true professional and an outstanding litigator with whom I have worked closely in the past. I can’t imagine how challenging it was for him to try a case of this magnitude amid the backdrop of such egregious conduct.

I try to hold my cynicism at bay, but conduct like is disheartening to say the least.

Thank you for reading,

Christina Sonsire
csonsire@zifflaw.com