Jurors intimidated by defendant doctor win settlement and public apology

Law Reporter, Dec 2003

Burgess v. Busby, N.C., Rowan County Super. Ct., No. 99-CVS-957, Sept. 18, 2003.

Joy Clement knew that a jury of one's peers is a bedrock of our legal system and that serving on one is a civic duty. She had recently served as a juror on a medical malpractice case, and she was astonished when her doctor told her he had received a letter listing her name and the names of the other jurors from that case, hinting that the medical community should be wary of them.

It began with a simple case against two doctors, one of whom was Busby. Although the jury found the other doctor liable, it found Busby not liable due to a lack of a doctor-patient relationship. Shortly thereafter, Busby sent a letter to every doctor with staff privileges at the county's only hospital, listing the names and addresses of all the jurors and stating that he was "leery" of them because they had found a doctor "guilty." Although he later claimed he was just trying to provide information to the medical community, Busby also reportedly admitted he intended that in the future, doctors would require these people to undergo more medical testing than would normally be done.

The judge who had presided over the malpractice case referred the matter to the district attorney, who referred it to the state attorney general. He in turn decided there was no proof of criminal intent and declined to prosecute.

Feeling as if their only recourse was a civil remedy, eight of the jurors turned to ATLA member Arthur J. Donaldson of Greensboro, North Carolina, for help. The jurors feared that the medical community would refuse them care or that their doctors would stop treating them, and many expressed anxiety about being called as jurors again because the system was not willing to protect them against retaliation.

The jurors decided they had to sue Busby to protect future jurors. In reaching their verdict, they had struggled to overcome their fear of finding a doctor liable, only to find that they were subjected to intimidation, and the government was unwilling to protect them. These factors, said Donaldson, "combined to steel their resolve to use the very system that had at first abandoned them."

Donaldson, joined by ATLA member Rachel S. Decker of Greensboro, filed a complaint against Busby alleging, among other claims, intentional infliction of emotional distress and obstruction of justice, and seeking punitive damages. The trial court dismissed, and plaintiff appealed.

From the start, Donaldson said, the obstruction of justice claim was an obvious path, even though the intimidation did not affect the jurors' deliberations because it occurred after the verdict was rendered. "Obstruction of justice laws were not put in place just to protect the integrity of a single case, but to protect the integrity of the system. A system that allows jurors to be retaliated against after they have served will quickly find that its citizens arc reluctant to serve," he said.

The Court of Appeals of North Carolina agreed, finding that the cause of action was valid and that justice had been obstructed. Noting that state criminal law makes it a crime to seek retaliation against a juror for the juror's prior official actions, the court ruled that obstruction of justice is a common law offense that has not been abrogated by the criminal code.

The court also found that plaintiffs' allegations about defendant's conduct in writing and distributing the letter established a claim for intentional infliction of emotional distress, which requires extreme and outrageous conduct and malicious intent. Moreover, the court found these allegations supported a claim for punitive damages. Burgess v. Busby, 544 S.E.2d 4 (N.C. Ct. App. 2001).

On remand, the trial court denied defendant's motion for summary judgment. The parties were ordered to undergo mediation, during which Donaldson relied heavily on the obstruction of justice claim and the punitive damages that could flow from that claim. Shortly before the trial was to begin, the doctor agreed to settle for an undisclosed amount.

More significant to plaintiffs than the monetary settlement, Donaldson said, was that the doctor agreed to issue a public apology to the jurors. "Compensation was not the primary goal. If an apology was issued early on there would not even have been a lawsuit."

He believes this case has already had a positive impact on both the jurors and the court system. After the appellate decision, a situation arose in the same trial court in which family members of a convicted defendant threatened the jurors after the verdict. The presiding judge had the family members detained and held in contempt of court.

"I spoke with some of our client jurors about this," Donaldson said, "and they felt that their pursuit of their claim assisted and protected those later jurors."

Documents in this case are available through the Court Document Sets section in the back of this issue, courtesy of Mr. Donaldson.