Judge orders delay in civil trial over Post-Gazette news article

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An Allegheny County judge Monday postponed a jury trial in a civil lawsuit filed by a Cheswick family alleging a man died because of mistakes by doctors and nurses in May 2009 at UPMC Presbyterian Hospital, attorneys on the case said.

Judge Ronald W. Folino continued the case for at least six months because of a story about the lawsuit that appeared Monday in the Pittsburgh Post-Gazette.

Judge Folino made the ruling after UPMC's attorneys filed a motion to continue the trial because of the news article, as well as a request for sanctions against the Sweets' attorney, Deborah Maliver, because she was allegedly "complicit" in the publishing of the article.

The motion for sanctions against Ms. Maliver -- which could have included attorneys' fees and costs associated with the continuance -- were denied by Judge Folino.

John Conti, UPMC's lead attorney on the case, said in an interview UPMC sought the continuance because "it's obvious that with the article written today, it made it impossible to select a fair and impartial jury."

The story, which also quoted Mr. Conti, outlined the lawsuit and, in particular, discussed allegations made by the family of the deceased, Samuel Sweet, that staff at UPMC Presbyterian Hospital altered or improperly created records in Mr. Sweet's electronic health record. Mr. Conti said the allegations were untrue.

Judge Folino approved Mr. Conti's motion to continue the case until at least March for a "cooling off period." The judge did not poll potential jurors to see how many had read the story, or ask whether it would affect their ability to be impartial, as many judges do.

While polling potential jurors is common in criminal cases that have ample publicity, it is not common in civil cases, said Bruce Ledewitz, a law professor at Duquesne University.

"This is a civil case and they're not as used to publicity," he said. "In a criminal case it's a matter of 'He shot her' and everyone knows about that case. But this is a little different because this is a specific allegation [in the Post-Gazette story] that could have prejudicial impact."

David Harris, a professor of law and associate dean for research at the University of Pittsburgh School of Law said that might be, but he still felt it was "odd" the judge would continue the case based on one story, whether it ran the day the jury was picked or not.

"The cure for something like this is simple: You ask the potential jurors if they read this or not, and find out what the jurors were actually exposed to," he said.

Judge Folino did not return a call seeking comment about his decision.

Ms. Maliver said she did not think the delay would affect the case. "The case is going to be the same in six months as it is now and I look forward to a fair and impartial jury hearing the case then," she said.

Sean D. Hamill: shamill@post-gazette.com or 412-263-2579.


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